United States v. Joe Reyes , 764 F.3d 1184 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50386
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00675-JAK-1
JOE ANGEL REYES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted
March 4, 2014—Pasadena, California
Filed September 4, 2014
Before: Jay S. Bybee, Carlos T. Bea,
and Morgan Christen, Circuit Judges.
Opinion by Judge Bybee
2 UNITED STATES V. REYES
SUMMARY*
Criminal Law
The panel affirmed a conviction and sentence for
attempted bank robbery in a case in which the defendant
contended that the district court violated his right to be
present at trial by excluding him from certain side bar
exchanges during jury selection.
The panel held that under Fed. R. Crim. P. 43, the
defendant has a right to be personally present during voir dire
of prospective jurors, and that the district court violated Rule
43 when it questioned Juror H outside of the defendant’s
earshot. The panel held that the error was harmless because
the evidence of the defendant’s guilt was overwhelming.
The panel held that meetings between counsel and the
court at which the participants discuss whether jurors should
be excused for cause, exercise peremptory challenges, or
decide whether to proceed in the absence of prospective
jurors are all examples of “a conference or hearing on a
question of law” from which the defendant may, under Fed.
R. Crim. P. 43(b)(3), be excluded at the district court’s
discretion. The panel therefore held that the district court did
not violate Rule 43 when it excluded the defendant from
seventeen other side bar exchanges.
The panel held that the defendant’s exclusion from the
side bar conference at which the district court conducted voir
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. REYES 3
dire of Juror H did not violate the defendant’s constitutional
right to be present because the defendant’s presence would
have been “but a shadow”; it was not an instance where the
defendant’s absence might frustrate the fairness of the
proceedings. The panel held that the district court’s decision
to exclude the defendant from the seventeen other side bar
exchanges – where the attorneys argued that jurors should be
excused for cause, exercised peremptory challenges, and
discussed whether to proceed in the absence of some
prospective jurors – was likewise consistent with the
Constitution.
The panel concluded that the district court did not impose
a substantively unreasonable sentence.
COUNSEL
Matthew B. Larsen (argued), Deputy Federal Public
Defender; Sean K. Kennedy, Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.
Michael Dore (argued), Assistant United States Attorney,
Violent and Organized Crime Section; Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division;
Andre Birotte, Jr., United States Attorney, United States
Attorneys’ Office, Los Angeles, California, for Plaintiff-
Appellee.
4 UNITED STATES V. REYES
OPINION
BYBEE, Circuit Judge:
Joe Angel Reyes appeals his conviction of one count of
attempted bank robbery in violation of 18 U.S.C. § 2113(a).
Reyes raises two arguments on appeal. First, he contends that
the district court violated his right to be present at trial by
excluding him from certain side bar exchanges during jury
selection. Second, he asserts that his sentence is
substantively unreasonable. We have jurisdiction under
28 U.S.C. § 1291. We affirm.
I.
A. Jury Selection
A federal grand jury returned an indictment charging
Reyes with two counts of bank robbery and two counts of
attempted bank robbery in violation of 18 U.S.C. § 2113(a).
The district court conducted voir dire on March 6, 2012.
Reyes was present in the courtroom with his attorneys. After
questioning the first twelve jurors in open court, the district
court conferred with the attorneys representing Reyes and the
government at side bar. The court began by asking Reyes’s
attorney, John Littrell, whether any jurors should be excused
for cause. After the lawyers discussed which jurors should be
excused, Littrell requested that Reyes himself be permitted to
participate at the side bar conferences with the lawyers. The
court denied the request, advising Littrell that “If you wish to
confer with your client while we’re here, you can do so” and
explaining that “I’ve never had a client participate in a side
bar on jury selection because I count on the lawyers that you
know what you’re doing to communicate with your client and
UNITED STATES V. REYES 5
get the data and convey it to me.” The court then reiterated
to Littrell that “If in the course of what we’re discussing
something comes up that you want to talk to him about at
anytime, please let me know.” Littrell declined to confer with
Reyes at that point. At the next side bar conference, the court
told defense counsel, “I know your client is not here and–you
have a standing objection on that.”
The district court held a total of eighteen side bar
conferences with the attorneys during the course of jury
selection. Consistent with the court’s decision, Reyes
remained at the table during each exchange rather than
joining the lawyers at the bench. On four occasions, Reyes’s
attorneys asked for a moment to confer with Reyes, and each
time the court granted the request and confirmed that they
were welcome to speak with their client before proceeding.
At seventeen of the eighteen side bar conferences, the
attorneys either discussed whether a juror should be excused
for cause, exercised a peremptory challenge, or conversed
about whether voir dire should proceed even though two of
the prospective jurors had yet to return from lunch. At no
point during these seventeen conferences did the attorneys or
the court speak with a prospective juror or anyone else.
During one of the eighteen side bar exchanges, the court
briefly questioned a prospective juror, who we will refer to as
Juror H, outside of Reyes’s earshot. As part of its standard
line of questioning, the district court asked Juror H in open
court whether any of the matters discussed “raises a question
with you as to your ability to be fair and impartial.” Juror H
answered “Yes, I have a personal issue,” and accepted the
court’s invitation to speak privately. The court then
questioned Juror H at the bench with the lawyers for both
6 UNITED STATES V. REYES
Reyes and the government present. Juror H informed the
court that a woman with whom her son had a child had
robbed nine banks about five years earlier. Juror H said “I
don’t know if I can be fair” because she thought the woman
should have been punished more harshly than she was for
robbing the banks. The court again asked Juror H whether
she could fairly evaluate the case as a juror and she responded
“I’m not sure” and “I can’t say.” Next, the court explained
that everyone has been shaped by their prior experiences, and
Juror H replied “That’s true” and “I don’t want to be unfair.”
The court instructed Juror H to further consider whether she
could be fair and sent her back to her seat. The attorneys for
both Reyes and the government recommended that Juror H’s
status as a juror be resolved immediately. The court then had
the following exchange with Juror H in open court:
The Court: Ms. [H], we spoke at the side; and
I asked you to reflect on what we talked
about. Have you had enough time to do that,
or do you need more time?
Juror H: I think I’m okay with the time.
The Court: What’s your present thinking? Can
you be fair and impartial in this case?
Juror H: It’s like, what is fair?
The Court: Well, fair means that you listen to
the evidence and evaluate it and you do so in
an impartial way.
Juror H: Yes, I believe so.
UNITED STATES V. REYES 7
After the exchange between the court and Juror H, Reyes’s
attorney exercised a peremptory challenge on a different
prospective juror. Neither party excused Juror H, who served
on the jury that convicted Reyes of attempted bank robbery.
B. Trial
At trial, the government adduced evidence that Reyes had
robbed two banks and attempted to rob two others between
September 24, 2010 and October 7, 2010. A teller at a Wells
Fargo bank branch in Los Angeles testified that, on
September 25, 2010, Reyes approached the counter where he
was working and handed him a note. The note, which the
government introduced into evidence, said “Don’t Be a
Hero—this is a Bank Robbery[.] I have a gernade [sic] and
if you [expletive] up I’ll pull it!! trust & Believe[.] I am a
Psycho Killer.” The teller testified that when he turned to get
his manager’s attention, Reyes left the bank without receiving
any money. The government introduced surveillance
photographs from the bank’s cameras depicting the event, and
the teller confirmed that he had previously identified Reyes
as the man who passed him the note. The government
introduced similar evidence from the other three banks that it
accused Reyes of robbing or attempting to rob—namely, the
testimony of bank employees who identified Reyes,
surveillance footage from the banks, and demand notes
allegedly used by Reyes.
Detective Veronica Conrado testified about interviewing
Reyes on the night that he was arrested. The government
introduced an audio recording of the interview, during which
Reyes described committing the four completed and
attempted bank robberies. Conrado testified that Reyes
confirmed he was the man pictured in two bank surveillance
8 UNITED STATES V. REYES
photos and that he wrote two of the demand notes produced
by the detectives.
After five hours of deliberations, the forewoman informed
the district court that the jury was deadlocked on three of the
four counts. At the urging of defense counsel, the court
declined to ask the jury to continue deliberating. The jury
returned a verdict finding Reyes guilty on count two of the
indictment, which is attempted robbery of the Wells Fargo
bank branch in Los Angeles on September 25, 2010. The
court declared a mistrial on the other count of attempted bank
robbery and the two counts of completed bank robbery. The
court later entered judgment on the jury’s guilty verdict on
count two of the indictment.
C. Sentencing
Before he was indicted in this case, Reyes pled guilty in
California state court to the second-degree robbery of a shoe
store that occurred about two weeks after the attempted bank
robbery at issue here. He was sentenced to a term of fifteen
years in state prison, which he was serving at the time he was
sentenced in this case.
The presentence report calculated a total offense level of
twenty-four and a criminal history category of VI, resulting
in a sentencing range of 100–125 months. The probation
officer did not identify any factors warranting a departure or
variance from the Guidelines range. At the sentencing
hearing, Reyes’s counsel requested a sentence of 100 months’
imprisonment, with twelve months to run consecutive to the
fifteen-year state sentence. The government requested 125
months’ imprisonment, with fifty months to run consecutive
to the state sentence. The district court imposed a sentence of
UNITED STATES V. REYES 9
125 months, with thirty-six months to run consecutive to the
state sentence, along with three years of supervised release.
In reviewing the factors specified in 18 U.S.C. § 3553(a),
the court emphasized that Reyes had exhibited a “long pattern
of criminal conduct” and had repeatedly committed additional
crimes soon after being released from state custody. It also
stated that the attempted bank robbery involved a threat of
violence because the note that Reyes passed to the Wells
Fargo teller said that he had a grenade.
II.
We first address Reyes’s contention that the district court
impermissibly excluded him from eighteen side bar
exchanges during jury selection. Although we review the
district court’s conduct of voir dire for abuse of discretion,
United States v. Sherwood, 98 F.3d 402, 407 (9th Cir. 1996),
questions of law that arise during the course of voir dire are
reviewed de novo, United States v. Beard, 161 F.3d 1190,
1193 (9th Cir. 1998).
A. Statutory and Constitutional Framework
A criminal defendant has both a statutory and a
constitutional right to be “present” during trial proceedings.
The source of the statutory right is Federal Rule of Criminal
Procedure 43, which provides in relevant part that “the
defendant must be present at . . . every trial stage, including
jury impanelment and the return of the verdict,” Fed. R. Crim.
P. 43(a)(2), but the “defendant need not be present . . . [if]
[t]he proceeding involves only a conference or hearing on a
question of law,” Fed. R. Crim. P. 43(b)(3).
10 UNITED STATES V. REYES
On the constitutional level, “[a] person charged with a
felony has a fundamental right to be present at every stage of
the trial . . . [including] the voir dire and empanelling of the
jury.” Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994)
(en banc) (citing Illinois v. Allen, 397 U.S. 337, 338 (1970)
and Diaz v. United States, 223 U.S. 442, 455 (1912)). “The
right of presence derives from the Confrontation Clause of
the Sixth Amendment and the Due Process Clauses of the
Fifth and Fourteenth Amendments.” Id. (citing United States
v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)).
Importantly, the scope of Rule 43 is broader than the
scope of the constitutional right to be present. See United
States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir.
2002) (stating that, in addition to the constitutional right to be
present, “[t]he defendant also has a broader statutory right to
be present ‘at every stage of the trial including the impaneling
of the jury and the return of the verdict’” (quoting Fed. R.
Crim. P. 43)); United States v. Sherman, 821 F.2d 1337, 1339
(9th Cir. 1987) (“The right to be present at every stage of the
trial set forth in Rule 43 is more far-reaching than the right of
a defendant to attend his trial as guaranteed by the
Constitution.”). The statute sweeps more broadly than the
corresponding constitutional right because Rule 43
incorporated the more expansive common law understanding
of the right as well as the constitutional standard. See United
States v. Rolle, 204 F.3d 133, 137 (4th Cir. 2000) (citing Fed.
R. Crim. P. 43, 1944 Advisory Committee Note, Para. 1).
UNITED STATES V. REYES 11
B. Federal Rule of Criminal Procedure 43
1. Violation of Federal Rule of Criminal Procedure 43
As an initial matter, we must distinguish between two
different kinds of side bar exchanges that occurred during
jury selection in this case. On one occasion, the court
questioned a prospective juror—Juror H—at the bench. On
seventeen other occasions, the lawyers for both parties met
the court at side bar to request that jurors be excused for
cause, exercise peremptory challenges, or discuss whether to
continue with the proceedings even though two prospective
jurors had not yet returned from lunch. During those
seventeen exchanges, neither the court nor the attorneys
spoke with a prospective juror or anyone else. We conclude
that the district court violated Rule 43 when it questioned
Juror H outside of Reyes’s earshot, but the district court did
not violate Rule 43 by refusing Reyes’s request to be present
during the other seventeen side bar exchanges.
a. Voir dire of Juror H
Rule 43(a)(2) provides in part that “the defendant must be
present at . . . every trial stage.” In the context of analyzing
the constitutional right to be present, we have explained that
voir dire is a trial stage. See Campbell, 18 F.3d at 671.
Because Rule 43 encompasses the constitutional right to be
present, voir dire is also a “trial stage” as the phrase is used
in the rule. See Rosales-Rodriguez, 289 F.3d at 1109. The
term “voir dire” means, among other things, “[a] preliminary
examination of a prospective juror by a judge or lawyer to
decide whether the prospect is qualified and suitable to serve
on a jury.” Black’s Law Dictionary 1710 (9th ed. 2009). The
district court thus conducted “voir dire” of Juror H at side bar
12 UNITED STATES V. REYES
when it asked about her ability to be fair and impartial in light
of her personal experiences with bank robbery, because the
conversation concerned whether she was “qualified and
suitable to serve on a jury.”
We have previously observed that “[t]here is authority
that Rule 43 requires the defendant’s presence at the voir dire
examination of prospective jurors.” United States v.
Bordallo, 857 F.2d 519, 522 (9th Cir. 1988), amended on
reh’g by 872 F.2d 334 (9th Cir. 1989). Indeed, other courts
have held that the defendant has a statutory right to be present
when the district court conducts voir dire at the bench. See,
e.g., United States v. Cuchet, 197 F.3d 1318, 1319–20 (11th
Cir. 1999) (discussing Rule 43 in concluding that “the district
court likely did err in excluding Defendant, over his express
objection, from a part of the confidential voir dire of
prospective jurors conducted at the bench”); United States v.
Ford, 88 F.3d 1350, 1369 (4th Cir. 1996) (quoting Rule 43(a)
before observing that “the defendants had the right to be
present during the bench conferences with the jurors”);
United States v. Washington, 705 F.2d 489, 497 (D.C. Cir.
1983) (per curiam) (“[T]here is little doubt that under rule 43,
the appellant had a right to hear that part of the voir dire
conducted at the bench after counsel made his request.”).
We agree with these courts that, under Rule 43, the
defendant has a right to be personally present during voir dire
of prospective jurors. The district court erred by questioning
Juror H to determine whether she was “qualified and suitable
to serve on a jury” when Reyes had a standing objection to
UNITED STATES V. REYES 13
his exclusion from the side bar conferences.1 The court could
have complied with Rule 43 either by permitting Reyes to
join his attorney at the bench while the court conversed with
Juror H or by questioning her in open court.
b. The seventeen other side bar exchanges
The district court did not violate Rule 43, however, when
it excluded Reyes from the seventeen other side bar
exchanges. According to Rule 43(b)(3), the “defendant need
not be present . . . [if] [t]he proceeding involves only a
conference or hearing on a question of law.” We have not yet
squarely decided whether Rule 43 requires the defendant’s
presence where, as here, the attorneys meet with the court to
discuss which jurors to dismiss for cause, exercise
peremptory challenges, or consider whether to proceed with
voir dire in the absence of some prospective jurors.2 We now
1
The exchange with Juror H was brief, but the language of the statute
does not allow for exceptions on the basis that the trial stage from which
the defendant was excluded was brief, redundant, or unimportant.
2
In United States v. Fontenot, 14 F.3d 1364 (9th Cir. 1994), we
expressly refrained from deciding whether Rule 43 mandated the
defendant’s presence at a peremptory challenge conference. Id. at 1370
& n.2. We held that it was not plain error for the district court to receive
the parties’ peremptory challenges outside of the presence of the defendant
when the defendant “had the opportunity to discuss his misgivings with
counsel during and immediately following voir dire, prior to exercising his
peremptory challenges.” Id. at 1370. But we did not decide whether the
peremptory challenge conference is a “trial stage” under Rule 43(a)(2) or
whether it is a “hearing on a question of law” under Rule 43(b)(3).
Our decision in Bordallo also did not reach this issue. There, we
observed that Rule 43 distinguishes “between the ministerial stage of
drawing the prospective juror pool and the formal pretrial narrowing of the
pool through voir dire for a particular trial.” Bordallo, 857 F.2d at 523.
14 UNITED STATES V. REYES
hold that meetings between counsel and the court at which the
participants discuss whether jurors should be excused for
cause, exercise peremptory challenges, or decide whether to
proceed in the absence of prospective jurors are all examples
of “a conference or hearing on a question of law” from which
the defendant may be excluded at the district court’s
discretion.
“Although [Rule 43(b)(3)] leaves the term ‘question of
law’ undefined, the term typically refers to ‘[a]n issue to be
decided by the judge, concerning the application or
interpretation of the law.’ An issue can be a ‘question of
law,’ moreover, ‘although it may turn on a factual point,’ so
long as it ‘is reserved for the court and excluded from the
jury.’” United States v. Gonzales-Flores, 701 F.3d 112, 116
(4th Cir. 2012) (second alteration in original) (internal
citation omitted) (quoting Black’s Law Dictionary 1366 (9th
ed. 2009)). Whether a prospective juror should be excused
We noted that “there is authority that the defendant has no right to be
present during the drawing of the jury by the jury commissioners,” while,
by contrast, “[t]here is authority that Rule 43 requires the defendant’s
presence at the voir dire examination of prospective jurors.” Id. at 522.
We concluded that the district court erred by excluding certain jurors from
the jury pool before either the defendant or his lawyer arrived because the
action was more analogous to “the voir dire examination of prospective
jurors” than “the ministerial stage of drawing the prospective juror pool.”
Id. at 522–23. But we had no reason to consider whether the proceedings
at issue were “a conference or hearing on a question of law” such that the
defendant’s presence was not required. The district court in Bordallo did
not hold a “conference” or “hearing” on which jurors to excuse, given that
it made the decision on its own without conferring with counsel and
without even waiting for the attorneys to arrive in court. Id. at 522. Here,
the district court always conferred with the attorneys for both parties
before excusing jurors, and then dismissed the jurors in open court in
Reyes’s presence.
UNITED STATES V. REYES 15
initially involves a fact-intensive inquiry into her answers and
demeanor during voir dire, among other things. That is why
we held, supra, that the district court erred by conducting voir
dire of Juror H outside of Reyes’s presence, thereby
potentially depriving him of information that he needed to
assist his attorneys in making an informed decision about
whether she should be seated on the jury.
But the side bar exchanges where the attorneys argued
that certain prospective jurors should be excused for cause
consisted solely of legal arguments based on facts that had
already been elicited in Reyes’s presence. The district court’s
determination whether to excuse a particular prospective juror
for cause is a question of law. See Perez v. Marshall,
119 F.3d 1422, 1426 (9th Cir. 1997) (“Whether a trial court
violates a defendant’s Sixth Amendment right to a jury trial
by excusing a juror for good cause and replacing that juror
with an alternate is a question of law . . . .”). A side bar
exchange where the court decides whether to excuse a juror
for cause is, therefore, “a conference or hearing on a question
of law” at which the defendant need not be present under
Rule 43(b)(3). Likewise, a side bar exchange where the
attorneys exercise peremptory challenges involves only the
application of legal rules, such as whether the parties have
used no more than the allotted number of peremptory
challenges. Other than the single instance where the court
questioned Juror H, all of the side bar conferences in this case
were properly conducted outside of Reyes’s presence because
they involved “[a]n issue to be decided by the judge,
concerning the application or interpretation of the law.”
Gonzales-Flores, 701 F.3d at 116 (quotation marks and
citation omitted).
16 UNITED STATES V. REYES
We offered guidance on determining whether a
conference or hearing involves a “question of law” in United
States v. Veatch, 674 F.2d 1217 (9th Cir. 1981). There, the
defendant was excluded from a pretrial conference where the
court and attorneys discussed the defendant’s motion for an
evidentiary hearing regarding his competency to stand trial
and motions related to a proposed insanity defense. Id. at
1225. We held that Rule 43 did not mandate the defendant’s
presence because his “presence would have contributed
nothing substantial to his opportunity to defend since the
matters discussed predominantly involved questions of law.”
Id. at 1226. Other courts have similarly reasoned that the
defendant’s exclusion from a conference or hearing is
permitted by Rule 43(b)(3) when the defendant’s presence
would probably be meaningless as a practical matter. See,
e.g., Gonzales-Flores, 701 F.3d at 118 (“[T]he whole point of
the right to be present (in both its constitutional and statutory
dimensions) is to permit the defendant to contribute in some
meaningful way to the fair and accurate resolution of the
proceedings against him.”); United States v. Jones, 674 F.3d
88, 94 (1st Cir. 2012) (“Rule 43 carves out an explicit
exception for ‘a conference or hearing on a question of law,’
the rationale surely being that a defendant’s presence on a
legal issue (whether at sidebar or in chambers) is not going to
aid the defense counsel in making such arguments.” (internal
citation omitted)); United States v. Moe, 536 F.3d 825, 830
(8th Cir. 2008) (explaining that a number of judicial
“decisions reflect an understanding that the Rule 43(b)(3)
exception hinges on whether the defendant’s absence would
impact his ‘opportunity to defend against the charge’”
(quoting Gagnon, 470 U.S. at 526)).
Here, Reyes’s presence at the seventeen side bar
exchanges where neither the attorneys nor the court spoke
UNITED STATES V. REYES 17
with a prospective juror “would have contributed nothing
substantial to his opportunity to defend.” Veatch, 674 F.2d at
1226. The court placed no limits on Reyes’s ability to convey
to his attorneys which jurors he thought should be excused for
cause or how he wanted to use his peremptory challenges.
And it permitted Reyes’s lawyers to confer with their client
before making decisions, thereby giving his counsel an
opportunity to explain the government’s position to Reyes
after the side bar exchanges. The court also identified in open
court each juror that had been excused so that Reyes would
have known if his attorneys had mistakenly challenged the
wrong juror.
Several other courts have held that Rule 43 does not
require the defendant’s presence under similar circumstances.
See, e.g., United States v. Curtis, 635 F.3d 704, 716 (5th Cir.
2011) (holding that the defendant’s “right to be present at
every stage of his trial” was not violated where he “was
present when the peremptory challenges were given formal
effect via the impaneling of the jury” and had an “opportunity
to consult with his attorney before his attorney submitted the
peremptory challenges”); United States v. Gayles, 1 F.3d 735,
738 (8th Cir. 1993) (“[The defendant] was present in the
courtroom while the potential jurors were questioned.
Although [the defendant] was absent later when his attorney
made his strikes . . . [the defendant] was present in the
courtroom when the clerk gave the strikes effect by reading
off the list of jurors who had not been stricken. . . . [The
defendant] was sufficiently present at the jury’s impaneling
to satisfy Rule 43 and the Constitution.”); United States v.
Bascaro, 742 F.2d 1335, 1349–50 (11th Cir. 1984) (holding
that “the defendants were sufficiently present at the
impaneling of the jury to satisfy the sixth amendment and
Rule 43” where the defendants were in the courtroom when
18 UNITED STATES V. REYES
voir dire occurred and they had an opportunity to confer with
their attorneys), abrogated in part on other grounds by
United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en
banc).
The cases from other circuits holding that Rule 43 was
violated when the defendant was excluded from a portion of
jury selection are distinguishable. For example, in United
States v. Thomas, 724 F.3d 632 (5th Cir. 2013), the court held
that “[the defendant’s] absence from the exercise of
peremptory challenges was in deviation from her rights both
under the Fifth Amendment Due Process Clause and under
the express provisions of Fed. R. Crim. P. 43.” Id. at 643.
But the court’s holding was premised on the fact that “[the
defendant] was not present when trial counsel exercised
peremptory challenges or when the court read the list of
jurors who were not struck into the record.” Id. (emphasis
added). Here, Reyes was present when each juror was
excused in open court and when the jury was sworn in. In
United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999), the
court stated that “[t]he absence of the defendants from the
peremptory challenge conference may sometimes constitute
reversible error.” Id. at 438. But the court did not elaborate
on when the defendant’s absence would be inconsistent with
Rule 43. Nor did the court decide the case before it on the
grounds that the defendant’s absence violated the rule.
2. Harmless error analysis
Having determined that the district court violated Rule
43(a)(2) when it conducted voir dire of Juror H outside of
Reyes’s presence, we must assess whether the error was
harmless. We conclude that the side bar voir dire of Juror H
was harmless because the evidence of Reyes’s guilt was
UNITED STATES V. REYES 19
overwhelming. See Rosales-Rodriguez, 289 F.3d at 1111(observing that “the evidence against the defendant was
overwhelming” in holding that a constitutional violation was
harmless beyond a reasonable doubt). At trial, the
government introduced Reyes’s recorded confession, the
testimony of a bank employee who identified him as the
culprit, and video footage from the bank. Because the
outcome would remain unchanged if Reyes had been present
when the court questioned Juror H at side bar, the violation of
Rule 43 was harmless. Rosales-Rodriguez, 289 F.3d at 1111.
C. Constitutional Right To Be Present
We next consider whether Reyes’s constitutional right to
be present was violated when the district court refused his
request to join his attorneys at the side bar conferences during
jury selection. We conclude that no constitutional violation
occurred.
“[A] defendant charged with a felony has a fundamental
right to be present during voir dire.” Sherwood, 98 F.3d at
407; see also Campbell, 18 F.3d at 671. But the Constitution
is not implicated every time a defendant is excluded from a
trial stage, for “[a]lthough the right of a defendant to be
present at his trial is ‘ancient and well-established,’ it is not
all encompassing or absolute.” Veatch, 674 F.2d at 1225
(internal citation omitted).
In Snyder v. Massachusetts, 291 U.S. 97 (1934), the
Supreme Court, in an opinion by Justice Cardozo, noted that
“in a prosecution for a felony the defendant has the privilege
under the Fourteenth Amendment to be present in his own
person whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend
20 UNITED STATES V. REYES
against the charge.” Id. at 105–06. With respect to voir dire,
the Court noted that the “defense may be made easier if the
accused is permitted to be present at the examination of jurors
. . . for it will be in his power, if present, to give advice or
suggestion or even to supersede his lawyers altogether and
conduct the trial himself.” Id. at 106. But the Court went on
to observe that “[n]owhere in the decisions of [the Supreme
Court] is there a dictum, and still less a ruling, that the
Fourteenth Amendment assures the privilege of presence
when presence would be useless, or the benefit but a
shadow.” Id. at 106–07 (emphasis added). The Court later
reemphasized that the constitutional right to be present is not
absolute, holding that “the presence of a 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.” Id. at 107–08 (emphasis added).3
The Court reaffirmed this holding in Faretta v.
California, 422 U.S. 806 (1975), where it observed that “[i]t
is now accepted . . . that an accused has a right to be present
at all stages of the trial where his absence might frustrate the
fairness of the proceedings.” Id. at 819 n.15 (emphasis
3
In Lewis v. United States, 146 U.S. 370 (1892), the Court stated that
“[a] leading principle that pervades the entire law of criminal procedure
is that, after indictment found, nothing shall be done in the absence of the
prisoner.” Id. at 372. But the Court set aside this principle in Snyder
when it explained that the Court’s previous statements “on the subject of
the presence of a defendant [were] dict[a], and no more.” Snyder,
291 U.S. at 117 n.2. The Snyder Court further observed that the
discussion of the right to be present in Lewis “deals with the rule at
common law and not with constitutional restraints.” Id. In Allen, the
Court again expressly repudiated Lewis in observing that “[t]he broad
dicta in [Hopt v. Utah, 110 U.S. 574 (1884)] and [Lewis] that a trial can
never continue in the defendant’s absence have been expressly rejected.”
Allen, 397 U.S. at 342.
UNITED STATES V. REYES 21
added). And the Court applied this principle in Gagnon in
holding that “[t]he mere occurrence of an ex parte
conversation between a trial judge and a juror does not
constitute a deprivation of any constitutional right. The
defense has no constitutional right to be present at every
interaction between a judge and a juror.” Gagnon, 470 U.S.
at 526 (internal quotation marks and citation omitted).
1. Voir dire of Juror H
Reyes’s exclusion from the side bar conference where the
court conducted voir dire of Juror H was not an instance
where the defendant’s “absence might frustrate the fairness of
the proceedings.” Faretta, 422 U.S. at 819 n.15. It was
instead an example of an exchange where his presence would
have been “but a shadow.” Snyder, 291 U.S. at 106–07.
A defendant’s presence during voir dire is important
because it allows him to observe the prospective jurors’
answers and demeanor so that he can assist his attorney in
constructing an impartial jury. See Bustamante v. Eyman,
456 F.2d 269, 274 (9th Cir. 1972) (“The right to be present at
trial stems in part from the fact that by his physical presence
the defendant can hear and see the proceedings, can be seen
by the jury, and can participate in the presentation of his
rights.”); see also Rolle, 204 F.3d at 137 (explaining that the
defendant might “have knowledge of facts about himself or
the alleged crime . . . which may become important as the
individual prejudices or inclinations of the jurors are
revealed” and that he “may also be a member of the
community in which he will be tried and might be sensitive
to particular local prejudices his lawyer does not know about”
(quotation marks and citation omitted)). But Reyes’s absence
when the court questioned Juror H at side bar did not
22 UNITED STATES V. REYES
meaningfully affect his ability to assist his attorneys in
evaluating her as a prospective juror. The exchange between
the court and Juror H was brief, and Reyes’s attorney could
have offered his client a full account of the conversation
between the court and Juror H given the brevity of the
exchange and the court’s willingness to permit them to confer
throughout voir dire. See Gagnon, 470 U.S. at 527 (“The
encounter between the judge, the juror, and [the defendant’s]
lawyer was a short interlude in a complex trial; the
conference was not the sort of event which every defendant
had a right personally to attend under the Fifth
Amendment.”). Of course, “the presence of counsel is no
substitute for the presence of the defendant himself.”
Bustamante, 456 F.2d at 274. But the ease and reliability
with which an attorney can relay the details of a side bar
exchange to the defendant is one factor that affects whether
the defendant’s absence might undermine the fundamental
fairness of the proceeding. See Gagnon, 470 U.S. at 526–27
(“[T]he exclusion of a defendant from a trial proceeding
should be considered in light of the whole record” (citing
Snyder, 291 U.S. at 115)).
The defendant’s right to be present is also an important
means to “safeguard the public’s interest in a fair and orderly
judicial system.” Bustamante, 456 F.2d at 274–75. But
Reyes’s exclusion from a short conversation between the
court and a prospective juror that was witnessed by counsel
and transcribed does not threaten the integrity of the judicial
system. To the contrary, to hold that the Constitution extends
to the defendant the right to be present at every exchange
between the court and a prospective juror might interfere with
the trial court’s ability to maintain a secure and orderly
environment. See Rushen v. Spain, 464 U.S. 114, 119 (1983)
(chastising the lower courts for “ignor[ing] the[ ] day-to-day
UNITED STATES V. REYES 23
realities of courtroom life and undermin[ing] society’s
interest in the administration of criminal justice” by strictly
limiting unrecorded ex parte communications between trial
courts and jurors).
Other courts have held that a defendant’s exclusion from
a portion of voir dire does not cast doubt on the fundamental
fairness of the proceedings. In Washington, the district court
questioned thirteen prospective jurors at side bar about their
prior involvement with the criminal justice system.
Washington, 705 F.2d at 496. The court refused the
defendant’s request to participate. Id. Two of the prospective
jurors questioned outside of the defendant’s presence were
eventually seated on the jury. Id. at 498. The D.C. Circuit,
in a per curiam opinion joined by then-Judge Ruth Bader
Ginsburg, held, as we do here, that the exclusion of the
defendant from part of voir dire violated Rule 43 but not the
Constitution. Id. at 497 n.5 (“The constitutionally mandated
minimum protection a defendant is entitled to under rule
43(a) is fundamental fairness. This minimum of fairness was
certainly met in this case . . . . We stress this only to amplify
that our holding is based on rule 43(a), not directly on the
Sixth Amendment confrontation clause or the due process
guarantee of the Constitution.” (internal citations omitted)).
Similarly, in Bland v. Sirmons, 459 F.3d 999 (10th Cir. 2006),
“the trial court conducted a limited voir dire of thirty-two
individual jurors in chambers” without the defendant present
before conducting the rest of voir dire in open court. Id. at
1020. The court held that the defendant’s absence from part
of voir dire was “not enough to establish a constitutional
violation” because “[c]onsidering [the defendant’s] absence
from individual voir dire in light of the entire jury selection
process, [the defendant] had ample opportunity to observe
jurors during voir dire and exercise peremptory challenges
24 UNITED STATES V. REYES
accordingly.” Id. at 1021; see also Kilmartin v. Dormire,
161 F.3d 1125, 1127 (8th Cir. 1998) (holding that the
defendant’s constitutional right to be present was not violated
when the trial court spoke with six prospective jurors outside
of the defendant’s earshot about matters that the prospective
jurors wished to discuss privately). In all three of these
cases—Washington, Bland, and Kilmartin—the trial court
conducted voir dire of multiple jurors outside of the
defendant’s presence without transgressing the constitutional
right to be present. These authorities bolster our conclusion
that the district court’s decision to briefly question a single
juror outside of Reyes’s presence did not create a scenario
where the defendant’s “absence might frustrate the fairness of
the proceedings.” Faretta, 422 U.S. at 819 n.15.
We note that the Second Circuit reached a contrary
conclusion in Cohen v. Senkowski, 290 F.3d 485 (2d Cir.
2002). There, the trial court held “pre-screening”
proceedings where it questioned all of the prospective jurors
outside of the defendant’s presence about their exposure to
media reports about the case. Id. at 487. Two of the jurors
who stated that they were familiar with the case were
eventually seated on the jury. Id. The trial court conducted
the remainder of voir dire in open court, though on three
occasions the court again questioned prospective jurors
outside of the defendant’s presence about possible bias based
on pretrial publicity and the nature of the charges. Id. The
Second Circuit concluded that the defendant’s right to be
present was violated, stating that “[p]re-screening of a jury
venire is not comparable to the brief conference between
judge and juror in [Gagnon], nor a procedure at which a
defendant’s presence would be ‘useless,’ as per [Snyder].”
Id. at 489 (internal citations omitted). Cohen is
distinguishable from this case on several levels. There, the
UNITED STATES V. REYES 25
trial court questioned all of the prospective jurors outside of
the defendant’s presence rather than just one prospective
juror. And the Cohen court did not indicate that the
defendant’s attorney was permitted to pause the presumably
lengthy “pre-screening” process with all of the prospective
jurors to confer with his client about their answers.
To the extent that Cohen can be read as holding that the
defendant’s absence from a portion of voir dire always causes
a violation of the constitutional right to be present, we
respectfully disagree. In Snyder, the Supreme Court
specifically mentioned the defendant’s right “to be present at
the examination of jurors” before holding that “the presence
of a 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.” Snyder, 291 U.S. at 106–08 (emphasis
added). We therefore follow the rule that the exclusion of the
defendant from a portion of voir dire violates the Constitution
only if “his absence might frustrate the fairness of the
proceedings.” Faretta, 422 U.S. at 819 n.15; see also Bland,
459 F.3d at 1020–21; Washington, 705 F.2d at 497 n.5.
Applying this rule, we conclude that although the district
court’s decision to conduct voir dire of Juror H outside of
Reyes’s presence was inconsistent with Rule 43, it did not
violate the narrower protections afforded by the Constitution.
2. The seventeen other side bar exchanges
The district court’s decision to exclude Reyes from the
seventeen other side bar exchanges—where the attorneys
argued that jurors should be excused for cause, exercised
peremptory challenges, and discussed whether to proceed in
the absence of some prospective jurors—was likewise
consistent with the Constitution. These conferences on
26 UNITED STATES V. REYES
questions of law are prototypical examples of instances
“when presence would be useless, or the benefit but a
shadow.” Snyder, 291 U.S. at 106–07. Reyes would have
merely observed the proceedings while the attorneys made
arguments about which jurors should be excused for cause
and exercised peremptory challenges. As in Gagnon, he
“could have done nothing had [he] been at the conference,
nor would [he] have gained anything by attending.” Gagnon,
470 U.S. at 527.
In Fontenot, we held, on plain error review, that the
district court did not err in having the attorneys exercise their
peremptory challenges outside of the defendant’s presence
where, as here, the defendant had the opportunity to confer
with his lawyer after voir dire and before the conference.
Fontenot, 14 F.3d at 1370. Furthermore, Reyes was able to
observe the composition of the jury on an ongoing basis and
correct any mistakes made by his lawyer in exercising his
peremptory challenges because the district court struck each
juror in open court. See Cohen, 290 F.3d at 490 (holding that
the defendant “did not have a constitutional right to be
present during the juror challenges” conducted in his absence
where he “was represented by counsel at these sessions, . . .
given an opportunity to consult with counsel before the
sessions began, and . . . the challenges were later effectuated
in open court”); Gayles, 1 F.3d at 738; Bascaro, 742 F.2d at1349–50. This is not a case where the defendant was absent
when jurors were excused or when the jury was impaneled.
See Thomas, 724 F.3d at 643 (“[I]f a defendant is not present
during the reading of the list of jurors not struck (the moment
the strikes are given ‘formal effect’) then the absence is in
derogation of his constitutional right to be present.”).
UNITED STATES V. REYES 27
The district court’s decision to exclude Reyes from the
side bar conferences did not violate his constitutional right to
be present. Because no constitutional violation occurred, we
need not address whether the alleged error was harmless
beyond a reasonable doubt.4
4
Reyes contends that excluding a defendant from a portion of jury
selection is a structural error that is not susceptible to harmless error
review. Although we need not address the issue in this case because no
constitutional violation occurred, we note that we have previously held
that a violation of the defendant’s right to be present is subject to harmless
error review. See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005)
(en banc) (“The Supreme Court has never held that the exclusion of a
defendant from a critical stage of his criminal proceedings constitutes a
structural error. To the contrary, in [Rushen, 464 U.S. at 117], the Court
determined that the fact that the defendant was denied the right to be
present during an ex parte communication between the judge and a juror
was a trial error that was subject to harmless error analysis.”); Bordallo,
857 F.2d at 522–23 (holding that the “violation of a defendant’s due
process right to be present at all stages of trial is subject . . . to the
harmless error rule” in a case where the defendant was not present when
the district court excused prospective jurors, some of whom it concluded
were friends or supporters of the defendant (internal quotation marks and
citation omitted)).
Reyes relies on United States v. Gonzalez-Lopez, 548 U.S. 140(2006), where the Court held that the “erroneous deprivation of the right
to counsel of choice . . . qualifies as ‘structural error.’” Id. at 150 (internal
quotation marks and citation omitted). But Gonzalez-Lopez does not
affect our cases holding that the erroneous deprivation of the defendant’s
right to be present is subject to harmless error review. We have continued
to apply these precedents after the Supreme Court issued its opinion in
Gonzalez-Lopez. See Marks, 530 F.3d at 812 (“If the denial of the right
to be present rises to the level of a constitutional violation, then ‘the
burden is on the prosecution to prove that the error was harmless beyond
a reasonable doubt.’” (quoting Rosales-Rodriguez, 289 F.3d at 1109));
Hovey v. Ayers, 458 F.3d 892, 903 (9th Cir. 2006) (“[A]s we recently held
in Campbell v. Rice, a violation of the right to be present is trial error,
subject to harmless error review.”).
28 UNITED STATES V. REYES
III.
Finally, Reyes contends that his sentence is substantively
unreasonable. “The substantive reasonableness of a sentence
. . . is reviewed for abuse of discretion.” United States v.
Autery, 555 F.3d 864, 871 (9th Cir. 2009).
The district court imposed a sentence of 125 months’
imprisonment, with thirty-six months to run consecutive to
the state sentence that Reyes was already serving for having
pled guilty to second-degree robbery. The sentence was at
the high end of the Guidelines range of 100–125 months. “In
determining substantive reasonableness, we are to consider
the totality of the circumstances.” United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). “The
overarching statutory charge for a district court is to ‘impose
a sentence sufficient, but not greater than necessary’ to reflect
the seriousness of the offense, promote respect for the law,
and provide just punishment; to afford adequate deterrence;
to protect the public; and to provide the defendant with
needed educational or vocational training, medical care, or
Other courts have likewise held that a violation of the defendant’s
right to be present is not a structural error. See, e.g., United States v.
Rivera-Rodriguez, 617 F.3d 581, 601–04 (1st Cir. 2010) (holding no
structural error where the district court questioned fifteen prospective
jurors outside of the presence of the defendants and their attorneys);
United States v. Riddle, 249 F.3d 529, 535 (6th Cir. 2001) (“[T]he right to
be present at voir dire is not one of those structural rights whose violation
constitutes per se error.”); Feliciano, 223 F.3d at 111 (“[D]efendants have
cited no case—and we have found none—in which an appellate court has
found a structural defect where a defendant was present throughout but
unable to hear a circumscribed portion of voir dire, and whose counsel
was allowed to consult with him about the limited questioning outside his
hearing.”).
UNITED STATES V. REYES 29
other correctional treatment.” Id. at 991 (quoting 18 U.S.C.
§ 3553(a)).
The district court did not abuse its discretion in imposing
the sentence in this case. At the sentencing hearing, the court
referenced Reyes’s extensive criminal history and tendency
to commit crimes soon after being released from custody.
Reyes committed the attempted bank robbery at issue here
less than a week after he was released from California state
prison, where he served part of a sixteen-month sentence. He
is presently serving a state sentence for a robbery he
committed two weeks after the attempted bank robbery. On
five previous occasions, Reyes was convicted of offenses that
he committed within a few months after being released from
prison. While only one of his previous offenses involved
violence, Reyes’s criminal history is lengthy and serious
enough to support the district court’s conclusion that a
sentence at the high end of the Guidelines range was
necessary to promote respect for the law and to deter him
from committing additional crimes. See United States v.
Ruiz-Apolonio, 657 F.3d 907, 920 (9th Cir. 2011); United
States v. Ringgold, 571 F.3d 948, 953 (9th Cir. 2009). The
district court also noted that Reyes’s attempted bank robbery
involved a threat of violence. Although there was no
evidence that Reyes was actually armed, a threat of violence
used to enable a bank robbery could nevertheless place
bystanders at risk as security guards and police officers
proceed on the assumption that the defendant is carrying a
weapon. Cf. United States v. Bendtzen, 542 F.3d 722, 724,
728–29 (9th Cir. 2008).
Reyes’s reliance on United States v. Amezcua-Vasquez,
567 F.3d 1050 (9th Cir. 2009), is unavailing. There, we
deemed a sentence substantively unreasonable because it was
30 UNITED STATES V. REYES
based on a sixteen-level enhancement for a violent felony that
the defendant had committed twenty-five years earlier, and
there was no indication that the defendant had “harmed or
attempted to harm another person or the property of another
for the past twenty years.” Id. at 1056. Here, by contrast,
Reyes’s criminal history is both extensive and recent. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1109
(9th Cir. 2010).
The district court did not abuse its discretion in surmising
that a sentence at the high end of the Guidelines range was
necessary to provide just punishment and protect the public
when the circumstances of the offense are viewed in
combination with Reyes’s criminal history. “[O]ur review of
the substantive reasonableness of a sentence is deferential and
will provide relief only in rare cases.” United States v.
Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc). This
is not one of those “rare cases” where the district court
abused its discretion by imposing a substantively
unreasonable sentence.
IV.
We conclude that the district court’s decision to conduct
voir dire of Juror H outside of Reyes’s presence violated
Federal Rule of Criminal Procedure 43. But the error was
harmless because “there is no reasonable possibility that
prejudice resulted from the absence.” Marks, 530 F.3d at 813
(internal quotation marks and citation omitted). We hold that
Reyes’s exclusion from the side bar exchanges during jury
selection did not violate his constitutional right to be present
because the conferences were not instances where the
defendant’s “absence might frustrate the fairness of the
proceedings.” Faretta, 422 U.S. at 819 n.15. Rather, any
UNITED STATES V. REYES 31
benefit of Reyes’s presence at side bar would have been “but
a shadow.” Snyder, 291 U.S. at 106–07. Finally, we
conclude that the district court did not impose a substantively
unreasonable sentence. We therefore AFFIRM the district
court’s judgment.