United States v. Smith, Craig A. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4059
United States of America,
Plaintiff-Appellee,
v.
Craig A. Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois, Rock Island Division.
No. 98-CR-40067--Joe B. McDade, Chief Judge.
Argued September 8, 2000--Decided October 13, 2000
Before Flaum, Chief Judge, and Posner and Rovner,
Circuit Judges.
Flaum, Chief Judge. Craig Smith appeals his
conviction for witness retaliation under 18
U.S.C. sec. 1513(b) following a jury trial. Smith
contends on appeal that: (1) the indictment
charging him is insufficient as a matter of law,
(2) the district court erred by excluding from
evidence the victim’s misdemeanor convictions,
and (3) by substituting a juror outside of
Smith’s presence, the court violated his right to
be present at all stages of the criminal
proceedings. For the reasons stated herein, we
affirm.
I. BACKGROUND
On the evening of October 30, 1998, Craig Smith
accosted Timothy Heater inside the Wells Fargo
Lounge. What under different circumstance would
be considered a barroom assault, was in this
instance a violation of the Federal Witness
Retaliation Statute. To fully understand why this
altercation resulted in the bringing of federal
charges, a discussion of the history of the
participants and their relationship is necessary.
From 1994 through 1996, Craig Smith illegally
harvested fresh water mussels ("clams"). After
harvesting, Smith would sell these clams to the
Mississippi Valley Shell Company ("MVSC"), which
would then sell them to Japanese cultured pearl
businesses. In 1995, as a result of poaching
violations, Smith’s Illinois clamming license was
revoked. Though he continued to harvest clams and
sell them on his own, Smith also enlisted the aid
of Timothy Heater. At the behest of Smith, Heater
purchased an Iowa license to harvest clams. On 13
occasions, Smith handed over his harvest to
Heater, who, acting as the "middleman," delivered
the clams to MVSC. In return, Heater received a
check in his name for the value of the harvest,
which he would then cash and deliver the proceeds
to Smith. For his part, Heater received
approximately 25 dollars per transaction.
On April 1, 1997, government agents executed a
search warrant of MVSC. While reviewing seized
records, the agents learned of Heater’s
involvement in MVSC’s operations. On April 2,
1998, Heater was served with a grand jury
subpoena issued by the United States District
Court for the Southern District of Iowa. After
reaching an agreement with federal agents, Heater
presented himself at the United States Attorney’s
Office in Rock Island, Illinois. While at the
Office, Heater presented handwriting exemplars
and discussed his involvement in the illegal
clamming operation. Heater informed the agents of
how he "laundered" Smith’s illegally harvested
clams, selling them to MVSC. Partially on the
basis of Heater’s testimony, Smith was indicted
for interstate transportation of illegally taken
wildlife in violation of 16 U.S.C. sec. 3372
("the Lacey Act"). On September 17, 1998, Smith
pled guilty to one count of the indictment. The
district court allowed Smith to remain free on
bond, pending sentencing. The district court also
admonished Smith to avoid contact with any
government witness.
On October 30, 1998, Heater arrived at the
Wells Fargo Lounge, located in Moline, Illinois.
Upon entering the establishment, Heater noticed
that Smith, accompanied by a group of friends,
was seated at a table. Heater proceeded to the
main bar where he ordered a drink. Smith, who
likewise noticed Heater’s presence at the Lounge,
approached the bouncer Jesse Sappington. Smith
requested that, in order to avoid any potential
incident, Sappington ask Heater to leave the
premises. Sappington approached Heater, and after
some negotiation, Heater agreed to vacate the
Lounge. While exiting, Smith approached Heater
from behind, verbally threatened his life, and
pushed him against a wall. As a result of the
altercation, Heater’s head was lacerated, and the
police were summoned.
On December 18, 1998, Smith was charged with
one count of witness retaliation in violation of
18 U.S.C. sec. 1513(b). The trial began on
February 22, 1999. On the second day of trial,
the court conducted a conference in chambers with
both government and defense counsels present. The
court had learned that a juror was unable to
travel to the court due to inclement weather. In
conference, the court stated that it wished to
proceed with an alternate juror, but gave both
sides the opportunity to state their positions.
Smith’s counsel stated that he had talked to
Smith who liked the juror a lot, and wished that
the trial be resumed only when that juror could
be present. Nonetheless, the court decided to
replace the missing juror with an alternate
juror. That day the jury returned a verdict of
guilty on the charge of witness retaliation./1
On November 18, 1999, Smith was sentenced to a
term of imprisonment of 93 months, 85 months of
which to run concurrent with the illegal
harvesting sentence.
Smith now appeals his conviction on three
grounds. First, Smith argues that his indictment
is insufficient as a matter of law. Second, he
claims that the district court erred in failing
to allow him to introduce evidence of Heater’s
misdemeanor convictions for domestic battery and
theft. Finally, Smith asserts that the district
court’s in-chambers decision to substitute an
alternate juror for a tardy one violated his
constitutional right to be present at all phases
of the criminal proceedings.
II. DISCUSSION
A. Sufficiency of the Indictment
Defendant’s first argument on appeal is that
the indictment in this case is legally
insufficient to charge the offense of witness
retaliation. We review challenges to the
sufficiency of an indictment de novo. See United
States v. Torres, 191 F.3d 799, 805 (7th Cir.
1999), cert. denied, 120 S. Ct. 1218 (2000). To be
sufficient, an indictment must fulfill three
distinct functions. First, the indictment must
state all of the elements of the crime charged;
second, it must adequately apprise the defendant
of the nature of the charges so that he may
prepare a defense; and third, it must allow the
defendant to plead the judgment as a bar to any
future prosecutions for the same offense. See
Fed.R.Crim.P. 7(c)(1); Torres, 191 F.3d at 805.
Indictments are reviewed on a practical basis and
in their entirety, rather than "in a
hypertechnical manner." United States v. McNeese,
901 F.2d 585, 602 (7th Cir. 1990).
In setting forth the offense, it is generally
acceptable for the indictment to "track" the
words of the statute itself, so long as those
words expressly set forth all the elements
necessary to constitute the offense intended to
be punished. United States v. Hinkle, 637 F.2d
1154, 1157 (7th Cir. 1981). However, an
indictment that tracks the statutory language can
nonetheless be considered deficient if it does
not provide enough factual particulars to
"sufficiently apprise the defendant of what he
must be prepared to meet." Russell v. United
States, 369 U.S. 749, 763 (1962). In order for an
indictment to satisfy this second hurdle, we
require, at a minimum, that it provide some means
of pinning down the specific conduct at issue.
United States v. Josten, 704 F. Supp. 841, 844
(N.D. Ill. 1989). Yet in this inquiry, the
presence or absence of any particular fact need
not be dispositive of the issue.
Applying the standards set forth above, we
believe the indictment in the instant case is
sufficient. The indictment of the defendant
charged that:
On or about October 30, 1998, at Moline, in Rock
Island County, in the Central District of
Illinois, the defendant, CRAIG ALLEN SMITH, did
knowingly engage in conduct and thereby cause
bodily injury to another person, and did threaten
to do so, all with intent to retaliate against
that person for documents and objects produced by
that person, who was a witness in an official
proceeding, that is, a session of the Federal
Grand Jury for the Southern District of Iowa, and
for information relating to the commission of
Federal offenses given by that person to law
enforcement officers, namely violations of the
Lacey Act, Title 16, United States Code, Section
3372. All in violation of Title 18, United States
Code, Section 1513(b).
Smith does not contend that the indictment in
question fails to state the elements of witness
retaliation. As defendant notes, this indictment
largely mirrors the language of 18 U.S.C. sec.
1513(b), the witness retaliation statute./2 By
framing the charge against Smith in the language
of the statute, this indictment fulfills that
first function of identifying the essential
elements necessary to sustain a conviction. Smith
contends however, that in doing so, this
indictment is devoid of any specific allegations
as to the conduct engaged in, the bodily injury
suffered, the victim’s name or identity, the
nature of the alleged threat, and the precise
location of the offense. Thus, he urges, it fails
to give him notice of what specifically he must
be prepared to meet at trial.
Smith is correct in his assertion that the
indictment at issue does not detail every factual
nugget necessary for conviction. However, we do
not believe that it is necessary for an
indictment to allege in detail the factual proof
that will be relied on to support the charges. We
consistently have held that the minimum level of
detail that is required for an indictment is that
it be sufficiently detailed so that it adequately
apprises the defendant of the charges, thereby
enabling him to prepare his defense. See Hinkle,
637 F.2d at 1157; see also United States v.
Williams, 679 F.2d 504, 508 (5th Cir. 1982).
Turning to the indictment, we believe that it
contains sufficient particulars to put the
defendant on notice of the nature of the witness
retaliation charge. Reading the indictment, the
defendant would have known that he was being
charged with witness retaliation for injuring, on
October 30, in Moline, Illinois, an individual
who gave testimony against him to the Grand Jury
for the Southern District of Iowa, relating to
the defendant’s violations of the Lacey Act.
Though we note that the inclusion of the victim’s
name would have made this matter beyond any
dispute, we believe that objectively, this
indictment sufficiently narrowed the category of
behavior to the incident with Timothy Heater at
the Wells Fargo Lounge.
Perhaps the best indication that the indictment
contained sufficient particulars to adequately
inform Smith of the nature of the charge against
him is that he does not suggest that he suffered
any prejudice as a result of factual deficiencies
in the indictment. As the district court noted,
from the day the indictment was issued through
the conclusion of the trial, Smith knew that
Heater was the victim referred to in the
indictment. In situations where an indictment has
neglected to supply a name of the other party
involved in the incident, we have held that such
failure, especially when no prejudice is alleged,
is insufficient to require a reversal of a
conviction. Collins v. Markley, 346 F.2d 230, 232
(7th Cir. 1965). Thus we conclude that the
district court was correct in determining the
indictment at issue to be sufficient./3
B. Exclusion of Victim’s Misdemeanor Convictions
Smith’s second argument on appeal is that the
district court erred in barring him from
introducing evidence of Timothy Heater’s prior
misdemeanor convictions for domestic battery and
theft. Specifically, Smith asserts that the
domestic battery convictions were a proper source
of cross examination under Fed.R.Evid. 404(a)(2)
and 405(b), and the introduction of the theft
convictions was a proper method of impeachment
under Fed.R.Evid. 608(b). We note at the outset
that the appellant carries a heavy burden in
challenging a trial court’s evidentiary rulings
on appeal, as a reviewing court gives these
special deference. United States v. Palmquist,
111 F.3d 1332, 1339 (7th Cir. 1997). We review
rulings on the admissibility of evidence for
abuse of discretion. United States v. Curry, 79
F.3d 1489, 1494 (7th Cir. 1996); see also Roy v.
Austin Co., 194 F.3d 840, 843 (7th Cir. 1999). In
doing so, disturbing a judgment of the district
court on evidentiary grounds is necessary only if
an erroneous ruling has a substantial influence
over the jury. Palmquist, 111 F.3d at 1339. "[A]
trial court’s erroneous rulings may be deemed
harmless if the record indicates that the trial
court would have rendered the same judgment
regardless of the error." Barber v. Ruth, 7 F.3d
636, 641 (7th Cir. 1993).
Federal Rule of Evidence 404(a) establishes the
general proposition that evidence of a person’s
character or a trait of a character is not
admissible for the purpose of proving action in
conformity therewith on a particular occasion.
Subsection (a)(2) of Rule 404 is an exception to
the general proposition, permitting defendants to
offer evidence of their victim’s character. Yet,
even if character evidence is admissible under
Rule 404(a)(2), the form of that evidence is
limited by Rule 405. Under Rule 405(a), when
character evidence regarding an individual is
admissible, proof may be made in the form of
opinion or reputation testimony. Under Rule
405(b), in the limited instance when the
character of a person is an essential element of
a charge, claim or defense, proof may also be
made by specific instances of that person’s
conduct. Thus Rules 404(a) and its subsections,
along with Rule 405, establish a two part test.
First, under Rule 404 we ask whether the evidence
at issue is relevant, and should thus be
admitted. If relevancy favors admission of the
evidence, we then turn to Rule 405, which guides
trial courts in determining whether the evidence
should be limited to reputation and opinion
testimony, or in the rarer instance, may also
include specific acts of conduct. See Palmquist,
111 F.3d at 1341; see also Hogan v. Hanks, 97
F.3d 189, 191 (7th Cir. 1996).
Turning to the first prong of the test,
relevancy, the district court determined that
evidence of Timothy Heater’s character was
relevant for the purpose of establishing whether
Heater was the first aggressor. This decision on
relevancy is in line with our opinion in United
States v. Greschner, which held that evidence of
the violent character of the victim is
specifically the type of material that falls
within the exception of 404(a)(2). 647 F.2d 740,
742 (7th Cir. 1981). Though Greschner stands for
the proposition that the failure of the district
court to admit relevant character evidence of a
victim may warrant reversal, that proposition of
law is inapplicable in the instant case. Here,
since the district court ruled the evidence
admissible, we move to the second prong of the
test, and determine whether evidence of Heater’s
violent character can be admitted by means of
specific acts of conduct, or is limited to
reputation and opinion testimony.
As Rule 405(b) indicates, "[i]n cases in which
character or a trait of character of a person is
an essential element of a charge, claim, or
defense, proof may also be made of specific
instances of that person’s conduct." Thus,
whether Heater’s prior misdemeanor battery
convictions should ultimately have been admitted,
depends on whether a violent character is an
essential element of a self-defense claim. The
district court determined that a violent
character is not an essential element of a claim
for self-defense, and thus propensity evidence
should be limited to reputation and opinion
evidence./4 In making that determination, the
court relied upon the Ninth Circuit opinion of
United States v. Keiser, 57 F.3d 847 (9th Cir.
1995). In Keiser, the court noted that, even in
the presence of proof of the violent character of
the victim, the jury could still determine that
the defendant’s use of force was not justified by
self-defense. Id. at 857. Of course, the opposite
is true as well; "a defendant could, for example,
successfully assert a claim of self-defense
against an avowed pacifist, so long as the jury
agrees that the defendant reasonably believed
unlawful force was about to be used against him."
Id.
This circuit has also addressed whether a
victim’s character should be considered an
essential element of a self-defense claim. In
Palmquist, we suggested that character evidence
usually does not go to an essential element of a
self-defense claim, but is rather purely
supporting circumstantial evidence. 111 F.3d at
1341. The appropriateness of an act of self-
defense is judged by the objective reasonableness
of the act under the circumstances at the time
which it was committed. Palmquist, 111 F.3d at
1341. Thus, specific acts of conduct of the
victim, if unknown to the individual claiming
self-defense, are necessarily circumstantial in
nature. Id. It is only when the specific
instances of conduct are known to the one
claiming self-defense, and thus could have
factored into the decisionmaking process that
resulted in the act, that such instances should
be admissible as essential elements of the claim.
Id.
Applying the Palmquist analysis, we agree with
the district court that Heater’s prior
misdemeanor convictions for battery were not an
essential element of Smith’s self-defense
claim./5 At the instant that Smith injured
Heater, Smith was unaware of those convictions.
That Heater may have had a violent character was
admissible for helping resolve the dispute as to
who attacked whom. However, character was in no
way an essential element of the actual self-
defense claim. The advisory committee notes
acknowledge that, "[o]f the three methods of
proving character provided by the rule, evidence
of specific instances of conduct is the most
convincing. At the same time it possesses the
greatest capacity to arouse prejudice, to
confuse, to surprise, and to consume time."
Fed.R.Evid. 405 advisory committee’s note. Given
that the convictions would be circumstantial
evidence, and given the power that specific
instances of conduct may have, especially when
the conduct is domestic battery, we feel the
district court correctly precluded the
introduction of these convictions./6
In addition to the battery convictions, Smith
also argues that Heater’s theft convictions
should have been admissible for impeachment
purposes, subject to Federal Rule of Evidence
608(b)./7 However, as Smith’s attorney noted at
oral arguments, this ground for admission was not
presented to the district court. "[A]rguments not
presented to the trial court during suppression
hearings are waived on appeal and may be reviewed
only for plain error." United States v. Jackson,
189 F.3d 502, 508 (7th Cir. 1999). Under the
plain error standard of review, courts are
allowed only to correct particularly egregious
errors for the purposes of preventing
miscarriages of justice. United States v.
Franklin, 197 F.3d 266, 270 (7th Cir. 1999).
We believe that no plain error occurred in this
instance. Specifically, we fail to find any
miscarriage of justice when a defendant is
precluded from introducing evidence that he had,
as part of a deal with the prosecution, agreed
not to introduce. In this instance, both Smith
and Heater had misdemeanor theft convictions. The
government had come to an agreement with Smith’s
counsel that neither side would offer the
respective convictions as impeachment evidence.
As such, Smith cannot claim any prejudice in the
court’s decision to exclude such evidence.
We end where we began, with the highly
deferential standard accorded to evidentiary
decisions of the district court. In this instance
the appellant has not demonstrated sufficient
error to overcome this heavy burden. As such, we
find no reversible error in the district court’s
decisions to exclude Heater’s prior convictions
for misdemeanor battery and misdemeanor theft.
C. Dismissal of Juror
Smith’s final challenge to his conviction is
that the district court committed reversible
error when it conducted an in-chambers conference
concerning the substitution of a juror without
Smith being present. Since neither Smith nor his
attorney objected to Smith’s absence from the in-
chambers conference at any time prior to this
appeal, we review for plain error. Fed.R.Crim.P.
52(b); United States v. McCoy, 8 F.3d 495, 496
(7th Cir. 1993). Under that standard, we will
reverse only if doing so is necessary to prevent
a miscarriage of justice. United States v.
Quintanilla, 2 F.3d 1469, 1476 (7th Cir. 1993).
A criminal defendant’s right to be present at
every stage of a criminal trial is rooted, to a
large extent, in the Confrontation Clause of the
Sixth Amendment, Illinois v. Allen, 397 U.S. 337,
338 (1970), and is protected to some extent by
the Due Process Clause of the Fifth and
Fourteenth Amendments, see Snyder v.
Massachusetts, 291 U.S. 97, 105-106 (1934) (Under
due process, a criminal defendant has the right
to be present "whenever his presence has a
relation, reasonably substantial, to the fullness
of his opportunity to defend against the
charge."). This right has also been codified in
the Federal Rules of Criminal Procedure. The
codified right expressed in Fed. R.Crim.P. 43(a)
is broader than the constitutional right, and
includes the right of the criminal defendant to
be present during all stages of his or her trial.
See United States v. Shukitis, 877 F.2d 1322,
1329 (7th Cir. 1989)./8
In the instant case, the court conducted an in-
chambers conference immediately before
commencement of the second day of trial. The
district court had learned that one of the jurors
was reluctant to travel to the courthouse that
day due to inclement weather. The court brought
counsel together to invite them to state their
positions on the matter. Counsel for the
defendant stated, "I talked to my client, Mr.
Smith, and he likes this juror a lot, and he
would like the trial to be resumed but only with
that juror present. That’s his wish." Despite
defense counsel’s request, the court ultimately
substituted an alternate juror for the absent
juror.
Given these facts, we believe that no
constitutional or other violation occurred with
the court’s decision to substitute for the absent
juror. First, no Sixth Amendment right has been
implicated here, as no witness or evidence
against the defendant was presented during the
in-chambers conference. See McCoy, 8 F.3d at 496.
Second, there has been no due process violation.
As it has been noted, "[t]he presence of the
defendant is a condition of due process to the
extent that a fair and just hearing would be
thwarted by his absence, and to that extent
only." United States v. Gagnon, 470 U.S. 522,
526, (1985) (Stevens, J., concurring). As in
Gagnon, the defendant here "could have done
nothing had [he] been at the conference, nor
would [he] have gained anything." Id. at 527.
Similarly, we have held that a defendant’s due
process rights are not implicated when he is
excluded from an in-camera conference, when that
absence did not affect the court’s ability to
decide the issue or otherwise diminish the
defendant’s ability to defend against the
charges, and when the defendant’s interests were
adequately protected by his counsel at the
conference. Shukitis, 877 F.2d at 1330. As in
Gagnon, McCoy, and Shukitis, Smith’s absence from
the conference did not detract from his defense
or in any way affect the fundamental fairness of
the trial. The record shows that counsel
adequately expressed Smith’s viewpoint in
chambers, and does not suggest that the decision
would have been any different had Smith been
present. As such, Smith had no due process right
to attend.
Finally, we note that Smith has waived any
possible right under Rule 43. "If a defendant is
entitled under Rule 43 to attend certain ’stages
of trial’ which do not take place in open court,
the defendant or his counsel must assert that
right at the time; they may not claim it for the
first time on appeal from the sentence entered on
a jury’s verdict of ’guilty.’" Gagnon, 470 U.S.
at 529. Here, neither Smith nor his counsel ever
requested that the defendant be present, nor
objected to Smith’s absence from the in-chambers
conference. Furthermore, our review of the record
reveals no post-trial motion bringing this to the
attention of the district court. This issue is
being raised on appeal for the first time and
therefore has been waived. Thus, we conclude no
reversible error occurred in the court’s
conducting the conference without Smith’s
presence.
III. CONCLUSION
For the foregoing reasons, the district court’s
decision is
Affirmed.
/1 Smith was also charged with witness tampering.
However, because he was found not guilty of that
crime, the circumstances surrounding that charge
are irrelevant to this appeal.
/2 The witness retaliation statute, 18 U.S.C. sec.
1513(b), provides in relevant part that:
Whoever knowingly engages in any conduct and
thereby causes bodily injury to another person or
damages the tangible property of another person,
or threatens to do so, with intent to retaliate
against any person for
(1) the attendance of a witness or party at an
official proceeding, or any testimony given or
any record, document, or other object produced by
a witness in an official proceeding; or
(2) any information relating to the commission
or possible commission of a Federal offense. . .
Shall be fined under this title or imprisoned not
more than ten years, or both.
/3 As further support for upholding the validity of
the indictment in question, we note that, under
ordinary circumstances, tardily challenged
indictments should be construed liberally in
favor of validity. United States v. Watkins, 709
F.2d 475, 478 (7th Cir. 1983). According to
Federal Rule of Criminal Procedure 12(b)(2) a
defendant must raise any objection to the
indictment prior to trial, and a failure to do so
means the indictment must be upheld unless it is
so defective that it does not, by any reasonable
construction, charge any offense for which the
defendant is convicted. Lemons v. O’Sullivan, 54
F.3d 357, 363 (7th Cir. 1995). Though the verdict
in this case was rendered on February 23, 1999,
it was not until August 3, 1999 that the
defendant filed a motion challenging the
sufficiency of the indictment. As our examination
above indicates, this indictment cannot be
considered "so defective" such that it does not
charge the offense of witness retaliation. Thus,
it is considered valid.
/4 The district court did in fact allow the jury to
hear indirect evidence of Heater’s character.
Troy Hund, a long-time acquaintance of Heater’s,
testified as to Heater’s reputation in the
community for aggressiveness, and violent
character.
/5 While we agree with the district court’s
conclusion that Heater’s prior misdemeanor
conviction for battery was not an essential
element of Smith’s self-defense claim, we choose
not to adopt the rationale of Keiser. We feel
that the determination of whether a victim’s
character is an essential element of a self-
defense claim depends on whether that character
factored into the decision to act in self-
defense. Though Keiser is correct that a victim’s
aggressive character is not ultimately
dispositive on the issue of whether the victim
was the first aggressor in a particular instance,
self-defense analysis examines more the beliefs
of the defendant rather than his or her actions.
/6 Even assuming arguendo that a victim’s violent
character is an essential element to a
defendant’s self-defense claim, we feel the
result in this instance would not be different.
This is not a situation where character evidence
was not admitted at all. Rather, all that was
excluded were specific instances of conduct.
Given that the misdemeanor battery convictions
would be considered cumulative, and given the
deferential abuse of discretion standard, we feel
reversal would not be warranted. See Palmquist,
111 F.3d at 1342; see also United States v.
Waloke, 962 F.2d 824, 830 (8th Cir. 1992) (Court
did not abuse its discretion in excluding
evidence of witness’ specific instances of
violence when it permitted evidence concerning
that witness’ general reputation for violence
after drinking.).
/7 Rule 608(b) provides in relevant part that:
Specific instances of the conduct of the witness,
for the purpose of attacking or supporting the
witness’ credibility, other than conviction of
crime as provided in rule 609, may not be proved
by extrinsic evidence. They may, however, in the
discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into
on cross examination of the witness (1)
concerning the witness’ character for
truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross examined has testified.
/8 Rule 43(a) provides that:
The defendant shall be present at the
arraignment, at the time of the plea, at every
stage of the trial including the impaneling of
the jury and the return of the verdict, and the
imposition of sentence, except as otherwise
provided by this rule.