United States v. Alexander Michael Roy

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 5, 2014
• Docket: 12-15093
• Status: Published

Opinion

Case: 12-15093 Date Filed: 08/05/2014 Page: 1 of 101

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-15093 ________________________

D.C. Docket No. 2:12-cr-14022-KMM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALEXANDER MICHAEL ROY,

Defendant - Appellant. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 5, 2014)

Before ED CARNES, Chief Judge, WILSON, Circuit Judge, and DALTON, * District Judge.

WILSON, Circuit Judge:

This appeal involves a defense attorney’s temporary absence from the

courtroom at his client’s trial when inculpatory testimony was admitted into

* The Honorable Roy B. Dalton, Jr., United States District Judge for the Middle District of Florida, sitting by designation. Case: 12-15093 Date Filed: 08/05/2014 Page: 2 of 101

evidence and contributed to his conviction. Appellant Alexander Michael Roy

(Roy) alleges that his criminal conviction was obtained in violation of the Sixth

Amendment and the Supreme Court’s holding in United States v. Cronic, 466 U.S.

648, 659, 104 S. Ct. 2039, 2047 (1984), which creates a presumption of prejudice

and requires a new trial when counsel is absent during a “critical stage” of the trial.

Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon

session of Roy’s trial commenced while his counsel was actually and physically

absent, and (3) during that absence, evidence directly inculpating Roy in a crime

for which he was eventually convicted was presented to the jury, we conclude that

Roy was denied counsel at a critical stage, and based on Cronic, we are required to

reverse Roy’s conviction as to all counts of the indictment and remand the case to

the district court for a new trial.

I.

Pursuant to a “reverse sting” operation conducted in conjunction with the

Osceola County Sherriff’s Office (OCSO), Detective Athena Ross of the Sumter

County Sherriff’s Office (SCSO) placed an advertisement on Craigslist purportedly

soliciting sex for two women. Roy responded to the advertisement, after which

Ross, acting undercover, told Roy that the advertisement was for herself, a thirty-

year-old woman named Denise, and her daughter, a thirteen-year-old girl named

Torie. Roy, “Denise,” and “Torie” (played by a second undercover SCSO

2 Case: 12-15093 Date Filed: 08/05/2014 Page: 3 of 101

detective) discussed various potential sexual activities by email, telephone, and

text message. Eventually, they arranged a meeting at a Waffle House restaurant in

Kissimmee, Florida. Roy drove to the restaurant and entered the parking lot, but

he drove away without ever parking his vehicle. OCSO deputies pulled him over

and arrested him, finding condoms and lubricant in his pockets.

OCSO conducted two searches of Roy’s home, leading to the seizure of a

desktop computer, a laptop, a thumb drive, and three compact discs, all of which

contained photographs and videos containing child pornography. Detectives also

found the text of online conversations Roy had with L.B., a minor with whom Roy

had carried on a romantic relationship. L.B. was depicted in some of the

pornography found on his computer, which Roy himself created. Much of the

child pornography depicted other underage girls.

Roy was indicted by a federal grand jury in the Southern District of Florida

on one count of enticing or attempting to entice a minor to engage in sexual

activity in violation of 18 U.S.C. § 2422(b) (Count 1) and four counts of

possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and

(b)(2) (Counts 2–5). A motion to suppress the evidence seized during the

execution of the warrants was denied.

During a portion of Roy’s jury trial, defense counsel was absent from the

courtroom immediately following a lunchtime recess. There was no explanation

3 Case: 12-15093 Date Filed: 08/05/2014 Page: 4 of 101

for the absence in the record. Prior to the recess, the court had stated that the trial

would recommence at 1:30 p.m. Instead, it started at 1:29 p.m. without defense

counsel present; counsel did not arrive until 1:36 p.m. The record does not reflect

any reaction by the court or the government either to counsel’s absence or to his

late arrival, though the court reporter did note both in the transcript. During

counsel’s absence, the government offered the following testimony from its

computer forensics expert witness, Detective Charlie Longson of OCSO:

Q. Now, did you have occasion to find during your forensic examination a folder on the desktop computer named “My Pictures,” which would fall within the “My Documents” file that was on that computer?

A. Yes, I did.

Q. And within the “My Pictures” folder, were there other subfolders?

A. Yes.

Q. And how were they categorized within that general folder of “My Pictures”?

A. Those folders were categorized by date, the year first, month second, and the date third.

Q. And were you able to determine any folders that had—or contained notable images within them?

A. Yes. I did find folders with notable images.

Q. And what were—what was the first folder of concern that you found?

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A. The first one I found was named “2006-03-11.”

Q. And would that folder have been created by a user of that computer?

A. Yes, it was.

Q. And did you find any images within that folder?

A. Yes, I did. I found six images.

Q. And would you please describe the images to the ladies and gentlemen of the jury within that March 11, 2006, folder that you found?

A. These images are a nude white female who was bound to a table by her feet with rope. The subject was laid across the table and had her head covered with an orange cloth which was secured around her neck with silver duct tape.

Q. Were you able to determine forensically how those pictures had been taken?

A. Yes. They were taken with a Kodak v530 zoom digital camera.

Q. And were you able to determine forensically a date and time those images were taken?

A. Yes, I was. These were taken on March the 10th, 2005, at 6:49 p.m.

Counsel returned soon after this exchange and, upon his return, did not raise any

objections. Direct examination of Detective Longson continued uninterrupted.

Detective Longson later testified as to the identity of the individual portrayed in the

photographs, L.B., as well as her date of birth: May 9, 1989. The jury found Roy

guilty on all counts, and the district court sentenced him to life imprisonment. 5 Case: 12-15093 Date Filed: 08/05/2014 Page: 6 of 101

Roy raises four claims on appeal. Of these, we address only the Sixth

Amendment denial of counsel claim. Specifically, Roy contends that his counsel’s

absence occurred during a critical stage of trial when inculpatory evidence was

admitted against him and that, therefore, he is entitled to a new trial pursuant to

Cronic, 466 U.S. at 658–59, 104 S. Ct. at 2046–47.

II.

“The claim that the temporary absence of trial counsel during the taking of

evidence constitutes a Sixth Amendment violation presents a mixed question of

law and fact and, as such, is subject to plenary review.” Vines v. United States, 28

F.3d 1123, 1127 (11th Cir. 1994).

A criminal defendant is entitled to the “Assistance of Counsel for his

defence.” U.S. Const. amend VI. In Cronic, the Supreme Court “conclude[d] that

a trial is unfair if the accused is denied counsel at a critical stage of his trial.” 466

U.S. at 659, 104 S. Ct. at 2047; see also Bell v. Cone, 535 U.S. 685, 695–96, 122

S. Ct. 1843, 1851 (2002) (listing the three bases for the Cronic presumption: (1)

“complete denial of counsel,” including at a critical stage; (2) failure by counsel

“to subject the prosecution’s case to meaningful adversarial testing;” and (3)

“where counsel is called upon to render assistance under circumstances where

competent counsel very likely could not”).

A.

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Roy contends that he was denied counsel at a critical stage of his trial when

the government recommenced direct examination of Detective Longson during his

counsel’s absence from the courtroom. We must first decide, then, whether the

portion of trial conducted in the absence of defense counsel was in fact a critical

stage. Although there is no strict test or definition for a critical stage of trial, the

Supreme Court, other United States Courts of Appeals, and our own precedent

provide us with guideposts to help answer that question.

In Vines, we did not apply a Cronic presumption of prejudice when Vines’s

lawyer was absent during the presentation of testimony to the jury. 28 F.3d at

1128. Vines was charged with possession of cocaine with intent to distribute and

conspiracy to possess cocaine with intent to distribute. Id. at 1125. The district

court excused Vines’s counsel on the first day of trial at 4:15 pm. 1 Id. at 1125–26.

During his absence, two witnesses testified. Id. at 1126. One witness testified

about the arrest of Vines’s co-defendant. Id. The second witness, who was part

owner and operator of the warehouse where the shipment containing the cocaine

was received, “simply testified about leasing the space.” Id. Vines was convicted

of the possession charge but was acquitted of conspiracy. Id. On appeal from the

district court’s denial of his 28 U.S.C. § 2255 motion, “we decline[d] to give birth

1 We did not decide whether Vines waived his right to counsel because, after determining that his counsel’s absence was a trial error rather than a structural defect, we decided any constitutional deprivation was harmless. Vines, 28 F.3d at 1129–31. 7 Case: 12-15093 Date Filed: 08/05/2014 Page: 8 of 101

to a rule that the taking of evidence is necessarily a critical stage of trial [and

found] that no evidence directly inculpating Vines was presented during his

counsel’s absence.” Id. at 1128. Because “no evidence directly inculpating [Vines

was] presented while [his] counsel [was] absent, we decline[d] to hold that counsel

was absent during a critical stage of trial within the meaning of Cronic.” Id.

Vines, however, does not control our analysis because counsel here was

absent during the presentation of testimony directly inculpating Roy. Before

counsel returned, the following evidence was admitted through the testimony of

Detective Longson, a witness for the prosecution:

Q. And how were they categorized within that general folder of “My Pictures”?

A. Those folders were categorized by date, the year first, month second, and the date third.

Q. And were you able to determine any folders that had—or contained notable images within them?

Q. And what were—what was the first folder of concern that you found?

Q. And would that folder have been created by a user of that computer?

Q. And did you find any images within that folder? 8 Case: 12-15093 Date Filed: 08/05/2014 Page: 9 of 101

Q. And would you please describe the images to the ladies and gentlemen of the jury within that March 11, 2006, folder that you found?

A. These images are a nude white female who was bound to a table by her feet with rope. The subject was laid across the table and had her head covered with an orange cloth which was secured around her neck with silver duct tape.

Q. Were you able to determine forensically how those pictures had been taken?

A. Yes. They were taken with a Kodak v530 zoom digital camera.

Q. And were you able to determine forensically a date and time those images were taken?

A. Yes, I was. These were taken on March the 10th, 2005, at 6:49 p.m.

That testimony, given during counsel’s absence, established the date on which

some images at issue were created, that the folders in which they were contained

would “have been created by a user of that computer,” and the content of those

images. The district court’s instructions to the jury on the possession counts

included the following:

The Defendant can be found guilty of [possession of child pornography] only if all the following facts are proved beyond a reasonable doubt: [(1)] [t]he Defendant knowingly possessed a visual depiction; [(2)] [t]hat the depiction was shipped or transported in interstate or foreign commerce by any means including a computer or that was produced using material that had been mailed, shipped, or transported in interstate or foreign commerce; [(3)] [t]hat producing the visual depiction involved the use of a minor engaged in sexually 9 Case: 12-15093 Date Filed: 08/05/2014 Page: 10 of 101

explicit conduct; [(4)] [t]hat the depiction is of a minor engaged in sexually explicit conduct; and [(5)] [t]hat the Defendant knew that at least one performer was a minor and knew that the depiction showed the minor engaged in sexually explicit conduct.

The evidence presented to the jury during counsel’s absence, therefore, provided a

basis for conviction on those jury instructions. The testimony that “a user of that

computer” would have created the folders containing the pornographic images

supports the conclusion that Roy “knowingly possessed a visual depiction.” The

identification of the date on which the images were created, when combined with

Detective Longson’s later identification of the subject’s date of birth, and the

description of the content of the images supported the third, fourth, and fifth

elements—that the images “involved the use of a minor engaged in sexually

explicit conduct;” that they were “of a minor engaged in sexually explicit

conduct;” and that Roy “knew that [they] showed the minor engaged in sexually

explicit conduct.”

Thus, this case is markedly different from our prior decision in Vines. Here,

the government presented the jury with directly inculpatory evidence on a count

for which Roy was ultimately convicted while his attorney was absent from the

courtroom. In Vines, the government did not present evidence of Vines’s own

wrongdoing, and he was acquitted on the conspiracy charge, severing any potential

imputation of his co-defendants’ wrongdoing to him. 28 F.3d at 1126, 1128

(“Upon review of the record, we find that no evidence directly inculpating Vines 10 Case: 12-15093 Date Filed: 08/05/2014 Page: 11 of 101

was presented during his counsel’s absence. Where, as in this case, no evidence

directly inculpating a defendant is presented while that defendant’s counsel is

absent, we decline to hold that counsel was absent during a critical stage of trial

within the meaning of Cronic.”); cf. United States v. Russell, 205 F.3d 768, 772

(5th Cir. 2000) (distinguishing the case presented, in which evidence directly

inculpating only Russell’s co-conspirators was presented during counsel’s absence,

from Vines because Russell was convicted of conspiracy, while Vines was

acquitted of the conspiracy charge). Hence, we must decide whether the

presentation of directly inculpatory testimony materially distinguishes this case

from Vines and constitutes a critical stage of a criminal trial.

Whether a portion of trial is critical is a categorical question; it is not the

unique facts of a particular trial that decide the issue but the nature of the stage.

See Van v. Jones, 475 F.3d 292, 301–02 (6th Cir. 2007) (emphasizing the

“accentuat[ion of] the categorical nature of [the critical stage] inquiry”); Burdine v.

Johnson, 262 F.3d 336, 347 (5th Cir. 2001) (“To justify a particular stage as

critical, the Court has not required the defendant to explain how having counsel

would have altered the outcome of his specific case. Rather, the Court has looked

to whether the substantial rights of a defendant may be affected during that type of

proceeding.” (internal quotation marks omitted)); cf. Hunter v. Moore, 304 F.3d

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1066, 1070 (11th Cir. 2002) (concluding that closing argument is categorically a

critical stage).

One working definition of a critical stage for purposes of Cronic is that set

forth by the Sixth Circuit in Van after it considered a quintet of Supreme Court

opinions as well as one of its own: whether “a reasonable likelihood that

[substantial prejudice to the defendant’s rights] will arise from complete absence of

counsel.” 475 F.3d at 313. The Supreme Court opinions on which Van relied hold

that a critical stage arises when “[a]vailable defenses may be . . . irretrievably lost,

if not then and there asserted,” Hamilton v. Alabama, 368 U.S. 52, 54, 82 S. Ct.

157, 159 (1961), “where rights are preserved or lost,” White v. Maryland, 373 U.S.

59, 60, 83 S. Ct. 1050, 1051 (1963) (per curiam), “whenever necessary to assure a

meaningful ‘defence,’” United States v. Wade, 388 U.S. 218, 225, 87 S. Ct. 1926,

1931 (1967), where “‘potential substantial prejudice to defendant’s rights inheres

in the . . . confrontation and the ability of counsel to help avoid that prejudice,’”

Coleman v. Alabama, 399 U.S. 1, 9, 90 S. Ct. 1999, 2003 (1970) (alteration in

Coleman) (quoting Wade, 388 U.S. at 227, 87 S. Ct. at 1932)), and when the stage

holds “significant consequences for the accused,” Bell, 535 U.S. at 696, 122 S. Ct.

at 1851. See Van, 475 F.3d at 312.

Consideration of these precedents, as well as the Sixth Circuit’s helpful

standard, convinces us that Roy’s counsel was absent during a critical stage of his

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trial. It is clear that there exists “a reasonable likelihood that [substantial prejudice

to the defendant’s rights] will arise from complete absence of counsel” during the

presentation of directly inculpatory testimony to the jury. Van, 475 F.3d at 313.

The absence of counsel during the presentation of inculpatory evidence used by the

government to convict the defendant eliminates the opportunity to decide whether

to lodge an objection and how to frame the objection, as well as the ability to

conduct cross-examination. See Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct.

1105, 1111 (“[D]eni[al of] the right of effective cross-examination [is]

constitutional error of the first magnitude and no amount of showing of want of

prejudice would cure it.” (internal quotation marks omitted)). Indeed, a defendant

may irretrievably lose available defenses and rights during direct testimony of a

prosecution witness. See Hamilton, 368 U.S. at 54, 82 S. Ct. at 159; White, 373

U.S. at 60, 83 S. Ct. at 1051. The presence of counsel during the examination of

an adverse witness is “necessary to assure a meaningful ‘defence.’” See Wade, 388

U.S. at 225, 87 S. Ct. at 1931.

The present case presents a circumstance substantially similar to the Sixth

Circuit decision in Green v. Arn, 809 F.2d 1257 (6th Cir.), vacated and remanded

on other grounds, 484 U.S. 806, 108 S. Ct. 52 (1987), reinstated on remand, 839

F.2d 300 (6th Cir. 1988). In Green, a habeas corpus petitioner had been jointly

tried with two other co-defendants. Id. at 1259. The co-defendants were

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represented by a separate lawyer than that of Ms. Green. Id. Green’s lawyer “was

absent during a critical part of the afternoon” of the trial, and although co-counsel

was present, Green’s lawyer was not. 2 Id. at 1259–61. During Green’s lawyer’s

absence, co-defendants’ counsel conducted cross-examination of a prosecution

witness. Id. at 1259. Green was convicted of kidnapping and gross sexual

imposition. Id. Affirming the grant of a writ of habeas corpus, the Sixth Circuit

determined that “[t]he presumption that counsel’s assistance is essential requires us

to conclude that a trial is unfair if the accused is denied counsel at a critical stage

of his trial.” Id. at 1263 (quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). The

Sixth Circuit went even further to say that “if counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing, then there has been a denial of

Sixth Amendment rights that makes the adversary process itself presumptively

unreliable”. Id. (quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). And when

the Sixth Amendment claim is, as here, “the denial, rather than the ineffective

assistance, of counsel, the criminal defendant need only show that counsel was

absent during a critical stage of the proceedings in order to establish the

constitutional violation. Absence from the proceedings is deficient performance as

a matter of law, and prejudice is presumed.” Id. (emphasis added).

2 Notably, the absence may have been as short as five minutes, as the government argued; Green asserted that it was nearly two hours long. Green, 809 F.2d at 1265 (Boggs, J., dissenting). 14 Case: 12-15093 Date Filed: 08/05/2014 Page: 15 of 101

B.

The Fifth Circuit agrees that Cronic prejudice arises when the defendant is

deprived of the presence of counsel during the presentation of inculpatory

testimony to the jury. In Russell, the defendant was charged with and convicted of

(1) conspiracy to possess cocaine and marijuana with intent to distribute, and (2)

conspiracy to launder money that was the proceeds of a drug transaction. 205 F.3d

at 769. Russell’s attorney was absent for two days of a joint trial while ill without

Russell’s waiver. Id. at 769–70, 771. Counsel for a co-defendant volunteered to

sit in for Russell’s counsel, and “[t]he district court instructed the government not

to call any witness relevant to Russell” while Russell’s counsel was absent. Id.

769–70. During counsel’s absence, none of the testimony presented “directly

implicated Russell,” but evidence relating to the conspiracy, which detailed the co-

conspirators’ attempts to launder money and import marijuana, was introduced. Id.

at 770. Prior to the absence of counsel, the government had presented evidence

“about Russell’s management of the distribution of marijuana operations and

involvement in providing [a co-conspirator] with funds.” Id. The evidence

presented during counsel’s absence therefore “flowed directly from Russell’s role

in the money laundering conspiracy to the roles of [his co-conspirators] in the same

money laundering conspiracy and the overall conspiracy to import and distribute

marijuana.” Id. Russell filed a motion to vacate the sentence pursuant to 28

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U.S.C. § 2255, which the district court denied. Id. at 769. Although declining to

adopt a “bright line rule that the taking of any evidence at trial in the absence of

counsel is prejudicial per se,” 3 id. at 771, the Fifth Circuit determined that counsel

was denied at a critical stage and that the Cronic presumption applied because

“Russell [was] without counsel as the probability of his guilt increased during the

government’s presentation of evidence against his co-conspirators,” id. at 772.

Russell’s conviction was reversed, and the case was remanded for a new trial. Id.

at 773.

Here, as in Russell, “the probability of [Roy’s] guilt increased during the

government’s presentation of evidence,” Russell, 205 F.3d at 772, and “[i]t is

difficult to perceive a more critical stage of a trial than the taking of evidence on

the defendant’s guilt,” Green, 809 F.2d at 1263. At Roy’s trial, evidence admitted

to prove that Roy knowingly possessed photographs of a minor engaged in

sexually explicit conduct was presented to the jury during his lawyer’s absence

from the courtroom. The absence constitutes “circumstances that are so likely to

prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.” Cronic, 466 U.S. at 658, 104 S. Ct. at 2046. We therefore find that

3 Compare this with our conclusion in Vines: “[W]e decline to give birth to a rule that the taking of evidence is necessarily a critical stage of trial” where “no evidence directly inculpating Vines was presented during his counsel’s absence.” 28 F.3d at 1128. 16 Case: 12-15093 Date Filed: 08/05/2014 Page: 17 of 101

Roy was deprived of his Sixth Amendment right to counsel at a critical stage of his

trial and that Cronic requires a reversal of his convictions.

C.

Typically, where an appellant demonstrates constitutional error, an appellate

court will not disturb a conviction if the government is able to show that the error

“was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824, 828 (1967). Courts applying the Cronic presumption of

prejudice where counsel was denied at a critical stage have reached varying

conclusions regarding the applicability of harmless error review under those

circumstances. Compare Siverson v. O’Leary, 764 F.2d 1208, 1217–19 (7th Cir.

1985) (applying harmless error review to Cronic error), with Green, 809 F.2d at

1263 (failing to apply harmless error review to the facts before it). We, however,

have previously held that “structural error exists where counsel is ‘prevented from

assisting the accused during a critical stage of the proceeding.’” United States v.

Arbolaez, 450 F.3d 1283, 1295 (11th Cir. 2006) (per curiam) (quoting Cronic, 466

U.S. at 659 n.25, 104 S. Ct. at 2047 n.25). Structural error is not subject to

harmless error review. See Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct.

1246, 1265 (1991) (Rehnquist, C.J., maj. op.) (“These are structural defects in the

constitution of the trial mechanism, which defy analysis by ‘harmless-error’

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standards.”); Vines, 28 F.3d at 1129 (“Trial errors are subject to harmless-error

analysis; structural defects are not.”).

As we have stated, Cronic error is structural. “[A]ny deprivation of

assistance of counsel constitutes reversible error and necessitates a new trial. Our

rule does not include a harmless error analysis. Cronic and Strickland4 make

clear that where actual or constructive denial of assistance of counsel occurs a per

se rule of prejudice applies.” Crutchfield v. Wainwright, 803 F.2d 1103, 1108

(11th Cir. 1986) (en banc) (emphasis added) (internal quotation marks omitted).

Cronic error necessitates a per se reversal. See Smith v. Wainwright, 777 F.2d 609,

616 (11th Cir. 1985) (“Where, however, a petitioner demonstrates that

circumstances surrounding his representation give rise to a presumption of

prejudice, he will prevail.” (citing Cronic, 466 U.S. at 657 n.20, 104 S. Ct. at 2046

n.20)); Harding v. Davis, 878 F.2d 1341, 1345–46 (11th Cir. 1989) (reversing after

finding Cronic error without conducting harmless error review); Hunter, 304 F.3d

at 1070 (“[D]enial of counsel at a critical stage . . . warrants reversal without a

specific showing of prejudice.”); Darden v. United States, 708 F.3d 1225, 1228

(11th Cir.), cert. denied 133 S. Ct. 2871 (2013) (“When [denial of counsel at a

critical stage or other Cronic error] occurs, the reviewing court presumes the

defendant was prejudiced and his conviction is in turn vacated.”).

4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 18 Case: 12-15093 Date Filed: 08/05/2014 Page: 19 of 101

Despite other Circuits’ willingness to apply harmless error review to Cronic

error generally, no Circuit has applied harmless error review upon a finding that a

defendant was deprived of his lawyer during the presentation of inculpatory

testimony to the jury and that such deprivation violated Cronic. Although the

dissent makes a reference to United States v. Kaid, 502 F.3d 43 (2d Cir. 2007) (per

curiam), Kaid has nothing to do with Cronic. The Second Circuit confined its

review to “whether a defense attorney’s purported twenty-minute absence from the

courtroom during a testimonial phase of a criminal trial constitutes ineffective

assistance of counsel.” Id. at 44 (emphasis added). In other words, the Second

Circuit worked under Strickland’s framework, not Cronic’s. Id. at 46–47.

In Green, the Sixth Circuit considered “whether harmless error analysis is

appropriate where a petitioner demonstrates she was unrepresented by counsel for

a critical period of time during the taking of evidence against her at trial.” Green,

809 F.2d at 1258. Green was tried jointly with two other co-defendants who were

represented by separate counsel. Id. at 1259. Green was represented by her

retained counsel. Id. Although her lawyer was present during a portion of the

afternoon session of a day of her trial, he was absent during a critical part of the

afternoon. Id. As the Sixth Circuit stated, “the present case is one where a

harmless error inquiry should be foreclosed. It is difficult to perceive a more

critical stage of a trial than the taking of evidence on the defendant’s guilt.” Id. at

19 Case: 12-15093 Date Filed: 08/05/2014 Page: 20 of 101

1263. Further stated: “The absence of counsel during the taking of evidence on the

defendant’s guilt is prejudicial per se and justifies an automatic grant of the writ

‘without any opportunity for a harmless error inquiry.’” Id. (quoting Siverson, 764

F.2d at 1217 n.6).

The Seventh and District of Columbia Circuits have likewise determined

that harmless error review is inappropriate when counsel is denied at certain

critical stages. See Siverson, 764 F.2d at 1217 n.6 (“We recognize that the lack of

counsel at some critical stages may be considered prejudicial per se, and may result

in automatic reversal of the defendant’s convictions without any opportunity for a

harmless error inquiry.”); United States v. Decoster, 624 F.2d 196, 256 (D.C. Cir.

1976) (en banc) (“Thus, where the defendant had no counsel at all at a critical

stage of his trial, automatic reversal of his conviction is usually in order.”).

Harmless error review in a case like this one would be an exacting and

problematic undertaking. First, as a reviewing court, we could not accurately

determine whether and to what extent counsel’s absence prejudiced the defendant.

See David A. Moran, Don’t Worry, I’ll Be Right Back: Temporary Absences of

Counsel During Criminal Trials and the Rule of Automatic Reversal, 85 Neb. L.

Rev. 186, 207–09 (2006). It would be difficult, if not impossible, for us as a

reviewing court to discern, on a cold record, the reaction of the jury to the evidence

presented and, therefore, to what extent counsel may have been able to react in a

20 Case: 12-15093 Date Filed: 08/05/2014 Page: 21 of 101

manner that would improve his client’s likelihood of acquittal had he been present

in the courtroom. See id. at 207 (“During an ongoing trial, real-world trial counsel

make crucial decisions based on the reaction of the jury to testimony, evidence,

argument, and other courtroom proceedings.”). In other words, harmless error

review under these circumstances either would give a defendant no meaningful

opportunity to challenge his conviction for denial of counsel during presentation of

inculpatory evidence or would require us to ignore relevant considerations simply

because they cannot be discerned from the record. See id. at 209.

Upon his return to the courtroom, Roy’s counsel failed to lodge an objection

to the admission of the evidence that he missed. Of course, he could not have

known what evidence he missed, as he was absent. The contemporaneous

objection rule ordinarily requires a party to object to the introduction of evidence at

the time it is introduced. Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct.

1423, 1428–29 (2009). Failure to do so subjects that evidentiary ruling to plain

error review. Fed R. Crim. P. 52(b); Puckett, 556 U.S. at 135, 129 S. Ct. at 1429.

However, plain error review is inapplicable in this context. As Cronic notes,

defense counsel’s presence is assured “not for its own sake, but because of the

effect it has on the ability of the accused to receive a fair trial,” e.g., to ensure that

someone is present to prevent the improper introduction of evidence. 466 U.S. at

658, 104 S. Ct. at 2046; cf. Mickens v. Taylor, 535 U.S. 162, 204, 122 S. Ct. 1237,

21 Case: 12-15093 Date Filed: 08/05/2014 Page: 22 of 101

1261 (2002) (Souter, J., dissenting) (“Why excuse a judge’s breach of judicial duty

just because a lawyer has fallen down in his own ethics or is short on competence?

Transforming the factually sufficient trigger of a formal objection into a legal

necessity for responding to any breach of judicial duty is irrational. . . . The

objection requirement works elsewhere because the objecting lawyer believes that

he sights an error being committed by the judge or opposing counsel. That is

hardly the motive to depend on when the risk of error, if there is one, is being

created by the lawyer himself . . . .” (citation omitted)); Wood v. Georgia, 450 U.S.

261, 265 n.5, 101 S. Ct. 1097, 1100 n.5 (1981) (holding that it was appropriate to

consider a conflict issue not raised below because (1) defense counsel might be

hesitant to raise it; (2) the government had to have been aware of the error; and (3)

the record indicated that there might be such an issue). The Fifth Circuit did not

apply plain error review in Russell, 205 F.3d at 772–73, even though “[t]he district

court did not speak to Russell or ask for his consent to the” absence, and counsel

“did not question anything that took place in his absence,” id. at 770. Further, we

have refused to subject Cronic error to plain error review even where counsel

remained silent when the judge directed a verdict against the defendant, a blatant

constitutional error. See Harding, 878 F.2d at 1345–46. 5 Therefore, plain error

review is not applicable under these circumstances.

5 Notably, in Harding, though the directed verdict was likely reversible plain error, see 22 Case: 12-15093 Date Filed: 08/05/2014 Page: 23 of 101

Where, as here, structural error has occurred, the entire trial is unfair and the

convictions as to all counts are tainted. See Fulminante, 499 U.S. at 309–10, 111

S. Ct. at 1265. The Supreme Court has defined structural errors as those where the

reviewing court “can only engage in pure speculation” about what the jury might

have done; their consequences are “necessarily unquantifiable and indeterminate.”

Sullivan v. Louisiana, 508 U.S. 275, 281–82, 113 S. Ct. 2078, 2082–83 (1993).

Structural errors are “markedly different” from trial errors (which can be

“quantitatively assessed”), and thus, structural errors “defy analysis by harmless-

error standards.” Fulminante, 499 U.S. at 308, 309, 111 S. Ct. at 1264–65 (internal

quotation marks omitted). There are some errors that courts can accurately

measure and hold harmless. This is not one of them. Especially here, where the

charges are interrelated and evidence relevant to one count may have influenced

the jury as to others.

III.

We pause to address the concerns expressed by our dissenting colleague in

his forceful dissent:

First, while maintaining that there was no Cronic error at all, the dissent

suggests that even if counsel’s absence taints the conviction as to Counts 2–5, we

Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101, 3106 (1986), we reversed for Cronic error, not for the directed verdict. See Harding, 878 F.2d at 1345–46. 23 Case: 12-15093 Date Filed: 08/05/2014 Page: 24 of 101

can separate out the evidence as to each count. Therefore, Count 1, for which Roy

received a life sentence, was unaffected by the evidence received during counsel’s

absence as to Counts 2–5.

But the government asked the jury to do the complete opposite at Roy’s trial.

Roy was charged in Count 1 with enticing or attempting to entice a minor to

engage in sexual activity. Counts 2–5 charged him with possession of child

pornography on his computer which, according to the government’s evidence, he

viewed a couple of days before traveling to the Waffle House in Kissimmee,

Florida, where his attempt to entice a minor allegedly occurred. As the

government stated in its closing argument:

Well, we know where he went, ladies and gentlemen, and I submit to you we know what he was ultimately planning to do, because his interest starts a couple days before.

You’ll recall the evidence. He’s accessing his girl’s folder on the laptop, he’s accessing his Lily folder on the laptop . . . . All that adds up to is little girls, ladies and gentlemen. You got a teacher sitting here that’s interested in little girls, because that’s all he’s got saved in his collection. He’s got it all backed up so if anything ever crashes, he’s got it in disk form, he’s got it in thumbnail form. That’s what he’s interested in, and that wasn’t entrapment, because he was into little girls a long time before he ever showed up in Kissimmee, Florida. You know it because that’s what he likes to look at on the Internet, as well. Later in his closing argument, the prosecutor continued to invite the jury to

consider evidence admitted as to Counts 2–5 in connection with Count 1 as well:

24 Case: 12-15093 Date Filed: 08/05/2014 Page: 25 of 101

He was predisposed. You know that from all of these videos and pictures he likes to watch.

As Chief Justice Rehnquist wrote in Fulminante, a “structural defect

affect[s] the framework within which the trial proceeds, rather than simply [acting

as] an error in the trial process itself. . . . [Where structural error exists] 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 fundamentally fair.”

499 U.S. at 310, 111 S. Ct. at 1265 (internal quotation marks omitted); see also

Vines, 28 F.3d at 1129 (“[S]tructural defects . . . involve deprivations of

constitutional protections so basic that in their absence no criminal trial can be

deemed reliable, nor any punishment fundamentally fair.” (citation and internal

quotation marks omitted)). To examine the evidence separately as to each count

when counsel has been denied makes little sense because we would have to

speculate about what evidence the jury may have applied in its deliberations as to

each individual count, especially in a case like this one, where the charges are

interrelated and evidence relevant to one count may have influenced the jury as to

others.

Next, the dissent suggests that this case should be remanded for an

evidentiary hearing to determine the circumstances surrounding counsel’s absence

from the courtroom during the presentation of evidence against Roy. Although

Judge Boggs’s dissent in Green (which reflects an almost identical yet condensed 25 Case: 12-15093 Date Filed: 08/05/2014 Page: 26 of 101

version of the dissent that follows this opinion) made the same suggestion, the

majority in Green “decline[d] the State’s invitation to remand for an evidentiary

hearing.” 809 F.2d at 1261. The majority found that “[a]lthough it may be that

some absences by a criminal defendant’s attorney might be so de minimis that there

would be no constitutional significance, the instant record unequivocally

demonstrates that [Green’s attorney’s] absence was not de minimis. In our view,

the record permits but one conclusion: [Green’s] constitutional right to counsel

was implicated by [Green’s lawyer’s] absence.” Id. at 1261–62. Contrary to the

dissent, we do not state a blanket rule requiring automatic reversal on the occasion

of any absence of counsel from the courtroom during the presentation of evidence

against the defendant at his trial. But here, the absence of Roy’s counsel from the

courtroom during the presentation of direct inculpatory testimony by a deputy

sheriff who was the government’s computer forensic specialist expert witness

cannot reasonably be considered a de minimis constitutional violation.

In fact, Judge Boggs, the dissenter in Green, would seem to join the majority

in this case. As Judge Boggs concedes, “[t]he facts of this case are a long way

from, for an extreme example, taking of direct testimony against a single defendant

whose counsel is absent.” Id. at 1265 (Boggs, J., dissenting).

Our dissenting colleague next suggests that Roy’s counsel “may have

deliberately taken advantage of his own tardiness and carefully avoided any

26 Case: 12-15093 Date Filed: 08/05/2014 Page: 27 of 101

attempt to correct the problem, hoping that he could have a get-out-of-jail-free card

in his pocket for his client. If so, it worked.” 6 Further, the dissent says that

counsel may have “deliberately engineered the whole thing” and that our decision

today could invite misconduct by opportunistic counsel, which, according to the

dissent, is prevalent in the three states of the Eleventh Circuit as reflected by

statistics evidencing rampant lawyer misconduct in Florida, Georgia, and Alabama

by criminal lawyers.

Our confidence in the integrity of lawyers, who are admitted to practice in

our courtrooms as officers of the Court bound by rules of professional

responsibility, satisfies us that our decision today will not go so far as to motivate

them to place their licenses to practice law in jeopardy by, as the dissent suggests,

strategically slipping out of the courtroom when the judge is not looking and when

they think inculpatory evidence is coming, to invite reversible error in the event of

a conviction. Nor does the parade of horribles imagined by the dissent permit us to

disregard Cronic.

The dissent also maintains that judges are not like, in its words,

“kindergarten teachers, [who] will be forced to keep an eye on their lawyer-

children.” Contrary to that view, we are unpersuaded that United States District

6 Counsel is so clever, says the dissent, that he may have deliberately arranged the services of another lawyer to argue this appeal rather than having to admit at oral argument that he orchestrated the entire Cronic violation. The dissent infers too much to support such a conclusion. 27 Case: 12-15093 Date Filed: 08/05/2014 Page: 28 of 101

Judges should be excused from the less than onerous burden of ensuring that the

defendant’s lawyer is seated at counsel table, next to his client, or is somewhere in

the courtroom when the government seeks the admission of incriminating evidence

that will be used by the jury to convict his client of a felony, resulting in life

imprisonment. Especially in a trial with a single defendant who has a single

lawyer.

We conclude that when the accused is deprived of his lawyer at a critical

stage of his trial, there has been a denial of Sixth Amendment rights that makes the

adversary process itself unreliable. The Constitution gives the defendant the right

to “the guiding hand of counsel at every step in the proceedings against him.”

Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64 (1932). Accordingly,

counsel’s absence during the admission of inculpatory evidence against Roy at his

trial is “‘constitutional error of the first magnitude and no amount of showing of

want of prejudice would cure it.’” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047

(emphasis added) (quoting Alaska, 415 U.S. at 318, 94 S. Ct. at 1111).

Although we reverse and remand for a new trial, a reversal does not mean

that the defendant goes free. Rather, Roy will be retried in accordance with the

rules of evidence and procedure, and without constitutional error.

IV.

28 Case: 12-15093 Date Filed: 08/05/2014 Page: 29 of 101

For the foregoing reasons, we reverse Roy’s convictions and remand for a

new trial.

REVERSED and REMANDED.

29 Case: 12-15093 Date Filed: 08/05/2014 Page: 30 of 101

ED CARNES, Chief Judge, dissenting:

Returning late from a lunch break on the third day of a six-day trial, defense

counsel missed a small part of the testimony of the twelfth of thirteen government

witnesses. He was out of the courtroom for only seven of the 1,884 minutes, or

31.4 hours, of the trial (not counting recesses and jury deliberations), which

amounts to less than one-half of one percent of the trial time. During his absence

counsel missed only 18 answers out of a total of approximately 2,745 answers that

were given by government witnesses during the trial, which means counsel missed

less than one percent of the total number of answers given by witnesses for the

prosecution. That’s it. And all of the testimony that he missed was repeated in

even more detail by the same witness after counsel returned to the courtroom.

So far as it appears from the record, the judge and the prosecutor did not

notice defense counsel’s brief absence. When he returned to the courtroom,

counsel did not object to testimony having been taken in his absence. He did not

ask the court to strike the questions and answers that he had missed and instruct the

jury to disregard them. He apparently did not seek to have the questions and

answers he missed read back to him outside the presence of the jury so that he

could familiarize himself with them and object to any that were objectionable. For

all that we can tell, counsel may have deliberately taken advantage of his own

tardiness and carefully avoided any attempt to correct the problem, hoping that he

30 Case: 12-15093 Date Filed: 08/05/2014 Page: 31 of 101

could have a get-out-of-jail-free card in his pocket for his client. If so, it worked.

The majority decides that the defendant’s convictions for attempted child

enticement and for possession of child pornography, most of which the defendant

produced himself, must be set aside because of his counsel’s brief absence, even

though the record conclusively establishes that the absence could not possibly have

prejudiced the defendant.

At oral argument, we could not ask the defendant’s trial counsel about the

facts surrounding his absence from the courtroom, why he did not object, if he

made any off-the-record effort to familiarize himself with the testimony taken in

his absence, or anything else about the matter. The reason we could not ask what

really happened, and why, is that trial counsel conveniently did not represent the

defendant on appeal. Another attorney did. We could have remanded the case for

an evidentiary hearing to find out all of the facts, but the majority refused my

request to do that. The majority is content with only a swift sideways glance at the

facts because it thinks the facts can be presumed away. But “[t]his is not a matter

for polite [or impolite] presumptions; we must look the facts in the face.” Frank v.

Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting).

The majority’s view, now the law of this circuit, is that if a witness gives any

testimony at all, even a single answer, supporting any count against the defendant

while the defendant’s attorney is outside the courtroom, reversal of every count of

31 Case: 12-15093 Date Filed: 08/05/2014 Page: 32 of 101

conviction is automatic. No matter what. Reversal is automatic regardless of the

reason for the absence. Regardless of whether the trial judge or prosecutor noticed

the absence. Regardless of whether the answer given during the absence was

objectionable. Regardless of whether the defendant suffered any actual prejudice

from counsel’s absence. Regardless of whether counsel failed to object or seek

any kind of corrective action. Regardless of whether counsel made a strategic

decision not to seek to correct the problem. Regardless of whether the first

mention of the matter was on appeal. And regardless of whether counsel

deliberately engineered the whole thing. In other words, absence plus any

inculpatory answer equals reversal regardless of any and all other facts and

circumstances.

The majority holds that no matter how strong the evidence of the

defendant’s guilt, all a defense attorney has to do to guarantee an automatic

reversal of his client’s conviction on any and all counts is to be outside the

courtroom while a witness gives a single inculpatory answer on any count against

his client. The attorney can keep quiet about it until he sees what the verdict is and

then claim his right to have any convictions set aside. And under today’s decision

they must be set aside.

In fact, under the majority’s holding, it does not even matter if the attorney

upon returning to the courtroom does object and does seek corrective action

32 Case: 12-15093 Date Filed: 08/05/2014 Page: 33 of 101

because as soon as a single answer is given in his absence an absolute, conclusive,

irrebutable presumption of prejudice arises. Nothing can be done. The law today’s

decision puts in place is that absence during any inculpatory testimony at all is all

that matters; no prejudice is required, no inquiry is allowed, no cure is permitted.

Of course I dissent.

Because the facts do matter under a proper view of the law, Part I of this

opinion summarizes the facts in order to show how defense counsel’s brief absence

could not possibly have prejudiced Roy on any count. Part II explains why any

claim of error concerning Roy’s trial is not Cronic error, and why the majority’s

unprecedented decision to the contrary is an extreme outlier. Part III addresses the

far reaching effects of this decision. Part IV lays out how we should have resolved

this case. It explains why any claim of error regarding defense counsel’s

momentary absence should be subject to the contemporaneous objection rule, and

given the failure to object, should be reviewed only for plain error. Applying that

standard, each of Roy’s five convictions should be affirmed because he cannot

even come close to showing that his lawyer’s seven-minute absence, which

amounted to less than one-half of one percent of the trial’s total length,

prejudicially affected his substantial rights. Part IV also points out that even if we

put aside the failure to object and do not restrict our review to plain error, any error

still would not be reversible because it was harmless.

33 Case: 12-15093 Date Filed: 08/05/2014 Page: 34 of 101

I. The Facts of the Matter

The transcripts of Roy’s trial show that, during its case-in-chief, the

government questioned 13 witnesses who provided approximately 2,745 answers

to questions while on the witness stand. Defense counsel was out of the courtroom

for only 18 of those answers and was present to hear 2,727 of them. The 18

answers that he missed were given during a seven-minute period in a trial that

lasted 31.4 hours, not counting recesses and jury deliberations. To put it in

context, defense counsel was out during less than one-half of one percent of the

trial time; he was out during less than one percent of the testimony that was given

by the government’s thirteen witnesses. Every answer given while counsel was

absent was repeated by the same witness after counsel returned, and trial counsel

objected to none of that testimony when it was reiterated in his presence.

To understand why defense counsel’s brief absence did not prejudice Roy, it

is important to consider the five charges against him. Count 1 was different in

kind from Counts 2 – 5. Count 1 charged Roy with attempted child enticement,

based on his efforts to arrange a sexual encounter with a fictitious 13-year-old girl

in response to an internet ad posted by law enforcement. That charge did not

involve any child pornography. And not a single question was asked about that

charge during counsel’s absence.

34 Case: 12-15093 Date Filed: 08/05/2014 Page: 35 of 101

Counts 2 – 5 did involve child pornography. Each of those four counts

charged Roy with knowingly possessing “any visual depiction” of child

pornography, and the same pornographic photographs and videos of minors were

apparently used to prove each count. The difference in the counts is based on the

four different electronic devices Roy used to store those images: his desktop

computer (Count 2); his laptop computer (Count 3); his USB thumb drive (Count

4); and three of his CDs (Count 5). The statutory basis for each of those four

counts, 18 U.S.C. § 2252(a)(4)(B), (b)(2), required just one image, but the

evidence proved without dispute that there were multiple pornographic

photographs and videos of multiple minors on each of the four devices. Each

count was proven many times over.

A. The Testimony Presented During the First Two-and-a-Half Days of Trial Before Defense Counsel’s Absence

During the first two days of the trial, with defense counsel present at all

times, the government called ten witnesses who provided testimony focused almost

exclusively on the attempted child enticement charge in Count 1. That testimony

showed that Roy, a middle school teacher, arranged a sexual encounter that he

thought would involve a 13-year-old girl and her mother, and he drove to a pre-

arranged location to meet them so that he could have sex with the girl. The

testimony also showed that Roy went to the liaison prepared –– with condoms and

35 Case: 12-15093 Date Filed: 08/05/2014 Page: 36 of 101

lubricant in his pockets. Roy’s lawyer was in the courtroom for the entirety of

those first two days of trial and for the presentation of all of the testimony and

evidence about Count 1. He did not miss anything about Count 1 on those or any

other days. Yet the majority reverses that count of conviction anyway.

On the third day of trial, before the lunch break and in counsel’s presence,

there was some additional testimony about Count 1, including the fact that Roy had

traveled more than an hour to get to the meeting place for the purpose of having

sex with a 13-year-old girl. Much of the testimony that morning, however, went to

Counts 2 – 5 and concerned Roy’s sexual relationship with L.B., the girl depicted

in the pornographic images and videos that he had produced and stored on the four

electronic devices specified in those four counts. (As I have mentioned, there was

also child pornography stored on each of those devices that depicted other minors,

which Roy had downloaded from the internet.)

Also on the morning of the third day of trial, with defense counsel present,

Florida Department of Law Enforcement Agent William Kulp testified without

objection that L.B. was born on May 9, 1989. That means any pornography

depicting her that was produced before May 9, 2007 is child pornography. See 18

U.S.C. § 2256(1) (defining “minor” for this purpose as anyone under 18 years of

age). The principal at the high school L.B. had attended identified photos of her in

various school yearbooks, three of which were admitted into evidence without

36 Case: 12-15093 Date Filed: 08/05/2014 Page: 37 of 101

objection. The purpose of that testimony was to permit the jury to compare how

L.B. looked at various ages with the depictions of her in the pornography.

The third and final witness to be called before the lunch break on the third

day was Deputy Sheriff Charlie Longson, a computer forensics expert. In defense

counsel’s presence, he testified extensively about his qualifications and how he

forensically examines a computer. He also testified about the user and

email/messenger accounts he found on Roy’s desktop computer which, among

other things, was used to get into evidence Roy’s email conversations setting up

the sexual liaison with the 13 year old and the sexually oriented instant messenger

conversations between Roy and L.B. that were on that computer. Longson’s

testimony was interrupted by a lunch break.

Again, all of the testimony recounted so far occurred during the first two-

and-a-half days of the trial, while Roy’s counsel was continuously present in the

courtroom.

B. The Testimony Presented During Defense Counsel’s Brief Absence After Lunch on the Third Day of Trial

Defense counsel returned late from the lunch break on that third day and

missed seven minutes of the testimony of Deputy Longson. During the seven

minutes counsel was out of the courtroom, Longson gave 18 answers to the

prosecutor’s questions. All of those 18 answers concerned only six of the

37 Case: 12-15093 Date Filed: 08/05/2014 Page: 38 of 101

numerous images of child pornography. All six of those images were of L.B. and

were found in only one of the several file folders containing child pornography on

Roy’s desktop computer. That folder had been labeled “2006-03-11.” Longson

testified that those six images depicted “a nude white female . . . bound to a table

by her feet with rope” and with “an orange cloth . . . secured around her neck with

silver duct tape.” He also testified that those six images were taken with a Kodak

v530 Zoom Digital Camera on March 10, 2005, were initially uploaded onto a

computer on March 11, 2006, and were then transferred to Roy’s desktop computer

on April 4, 2009. All of that testimony was about facts that had been disclosed to

the defense two months before trial in Longson’s forensic lab report. During the

seven minutes while defense counsel was out, no exhibits were admitted into

evidence and Longson did not identify L.B. as the female in the pornographic

images.

C. The Testimony Presented After Defense Counsel’s Return to the Courtroom Following His Brief Absence

Defense counsel returned to the courtroom following those seven minutes of

testimony, which covered only three transcript pages. The prosecutor then

continued questioning Longson for 69 more pages of the transcript, he was cross-

examined by defense counsel for 45 more pages, and his re-direct testimony covers

19 more pages. Adding those numbers to Longson’s 42 pages of testimony before

38 Case: 12-15093 Date Filed: 08/05/2014 Page: 39 of 101

the lunch break, his testimony spans two days and covers 133 pages of the

transcript, only three pages of which occurred in defense counsel’s brief absence.

The testimony Longson gave during the seven minutes defense counsel was

not there, all of which concerned only six of the multiple images of child

pornography, was repeated immediately after counsel returned to the courtroom.

After defense counsel entered the courtroom, the prosecutor approached Longson

with 10 exhibits that included, among others, the six images Longson had found in

the “2006-03-11” folder on Roy’s desktop computer. Longson then described in

detail what each image depicted, and testified that they had been created on March

11, 2006, and uploaded onto Roy’s desktop computer on April 4, 2009. Those

images showed the then-16-year-old L.B. “bound to a table by her feet with

a . . . red and white ski rope”; she was wearing an “orange hood across her head

with silver duct tape secured around the neck”; there was a “dildo inserted in her

vagina” and “a male’s penis . . . suspended above [her] body.” (A few pages later

in the transcript, Longson repeated his earlier testimony that all of the images of

L.B. on Roy’s desktop had been taken with a Kodak v530 Zoom Digital Camera.)

At the time those images of L.B. were taken, she was a minor for purposes of the

child pornography charges against Roy in Counts 2 – 5 because she was under 18

years of age. See 18 U.S.C. § 2256(1). The ten images were admitted into

evidence without objection while defense counsel was present.

39 Case: 12-15093 Date Filed: 08/05/2014 Page: 40 of 101

Being present during all of the testimony recounted in the preceding

paragraph, Roy’s trial counsel had an opportunity to object to the testimony or

admission of the exhibits into evidence, but he did not object. Likewise, Roy’s

appellate counsel has not suggested any basis for objecting to the testimony or to

the admission of the exhibits. Their failure to do so shows that trial counsel’s

seven-minute absence when the same testimony was given by the same witness

earlier (and no exhibits were admitted) did not deprive the defense of an

opportunity to lodge a valid objection to any testimony or evidence.

After repeating in defense counsel’s presence all of the testimony he had

missed, Longson testified for the first time about other pornographic images of

L.B. that he had found on Roy’s desktop, laptop, thumb drive, and CDs. None of

those other images had been mentioned in counsel’s absence. With counsel

present, Longson described a series of three images found on Roy’s desktop in a

separate file folder labeled “2006-02-04,” which featured L.B. lying naked in a

bathtub with “Alex’s Little Cunt” written in “black ink both on [her] chest between

the breasts and then on [her] stomach over the naval.” Longson testified that those

images were taken on December 2, 2006, when L.B. indisputably would have been

only 17 years old, which means she was a minor for purposes of the child

pornography charges against Roy in Counts 2 – 5.

40 Case: 12-15093 Date Filed: 08/05/2014 Page: 41 of 101

With defense counsel present, Longson also testified about finding on Roy’s

desktop and laptop numerous videos of L.B. that had been made between October

and December 2006 using a Kodak v530 Zoom Digital Camera, and it was

undisputed that L.B. would have been 17 years old during that time. Some of

those videos showed: L.B. bound and blindfolded with a “body net covering her

body” and “a red dildo inserted into her anus”; L.B. “fully nude” with a “dildo in

her vagina” while she “perform[ed] fellatio on a white male”; L.B. “fully nude”

with a “vibrator in her vagina” while a white male “attempt[ed] to have annal [sic]

sex with her”; L.B. performing fellatio after removing a “school-girl outfit”; L.B.

having sexual intercourse with a man while she was tied up; and L.B. lying “nude

in [a] bathtub” with “Alex’s little cunt” scrawled across her chest and stomach

while a man urinated on her.

Longson described each of those videos and they were admitted into

evidence. Although defense counsel was present during all of that testimony and

admission of exhibits, he never objected to any of it. And Roy’s appellate counsel

has not suggested to us that there was any basis for objecting to that testimony or

to the admission of those videos into evidence.

Longson’s testimony about the child pornography he found on Roy’s

desktop, laptop, USB drive, and CDs was not limited to images and videos of L.B.

Longson also testified about finding several images of downloaded child

41 Case: 12-15093 Date Filed: 08/05/2014 Page: 42 of 101

pornography in temporary internet files on Roy’s desktop computer, as well as

pornographic images of minors stored elsewhere on his electronic devices,

including files named “Kingpouge_14,” “Vica_16,” and “Svet_16.” Longson

specifically described how one of those images showed “two or three subjects

under the age of 18 engaged in sexual activity with two men.” These were images

of minors other than L.B., and they were admitted into evidence. Although he was

present during all of that testimony, defense counsel never objected to any of it,

and Roy’s appellate counsel has not suggested to us any ground for keeping it out.

The importance of the unrefuted testimony and evidence about the child

pornography involving minors other than L.B., all of which was admitted while

defense counsel was present, is that any one of those images was enough by itself

to prove each of the charges contained in Counts 2 – 5, because all the statute

requires is one “visual depiction” of child pornography. See 18 U.S.C.

§ 2252(a)(4). That means that even if all of the testimony involving L.B. were

struck from the record because defense counsel was out of the courtroom while a

small part of that testimony was first given, the Count 2 – 5 charges against Roy

were still conclusively proven. They were conclusively proven by the testimony

and other evidence concerning child pornography depicting minors other than L.B.,

all of which came in during counsel’s presence.

42 Case: 12-15093 Date Filed: 08/05/2014 Page: 43 of 101

Once the prosecution completed its direct examination of Longson, defense

counsel thoroughly and vigorously cross-examined him over the course of 45

pages of the trial transcript. Counsel attempted to challenge Longson’s testimony

that the photographs and videos of L.B. were created when she was under the age

of 18. His challenge fell short, however, because Longson explained that data

embedded in the photographs and videos of L.B. showed that they had been taken

with a Kodak digital camera on a date when L.B. was a minor. Significantly,

defense counsel did not even attempt during cross-examination or elsewhere to

challenge Longson’s testimony about the pornographic images involving minors

other than L.B., and any one of those images on the devices was enough to convict

Roy on Counts 2 – 5.

On the fourth day of trial, the government called its last witness and then

rested. The defense called a few witnesses, including Robert Deane Moody, its

own computer forensics expert. He testified that there were reported problems

with the battery life of the Kodak camera model that Roy had used to produce the

images of L.B., which would cause the camera’s internal clock to reset to its

default date and time if the camera’s battery went dead. If the internal clock in the

camera used to create the images of L.B. had reset, it was possible that the creation

dates that Deputy Longson had noted for the L.B. images and videos might be

inaccurate. Moody conceded, however, that the problems were not necessarily

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present in all of those models of the Kodak camera and that Roy’s may not have

had any battery issues anyway. He admitted that the names of the computer

folders in which the L.B. images were stored (i.e., “2006-03-11” and “2006-10-

13”) were all consistent with the creation dates that the camera had embedded in

those images. He also admitted that the images and videos were numbered

sequentially and showed no signs of reverting back to an earlier date. And none of

his testimony concerned the numerous other images of child pornography that were

found on Roy’s four electronic devices, any one of which was enough to prove his

guilt.

II. Defense Counsel’s Absence for Less Than One-Half of One Percent of the Trial Was Not Cronic Error

This part proceeds in four sections to explain why Cronic’s presumption of

prejudice does not apply in this case. Section A reviews the Cronic decision and

related Supreme Court precedent and shows how trial counsel’s seven-minute

absence during a six-day trial is far removed from the narrow and extreme

circumstances in which the Cronic presumption is appropriate. Section B

discusses the meaning of a “critical stage,” a meaning vital to consideration of

Cronic in this case, and explains how the majority’s extreme definition of “stage”

runs counter to common sense and precedent. Section C recognizes, as this Court

sitting en banc has held, that Cronic’s presumption is reserved for “only a very

44 Case: 12-15093 Date Filed: 08/05/2014 Page: 45 of 101

narrow spectrum of cases” where the adversary process is presumptively

unreliable, and it explains how the record plainly shows that there is nothing

unreliable about Roy’s trial and his convictions. Section D discusses decisions

from other circuits that have addressed whether Cronic applies to temporary

absences of an attorney from trial, and it shows that today’s decision is an extreme

outlier. It also discusses why courts are capable of determining whether brief

attorney absences are prejudicial.

A. Supreme Court Precedent

The majority’s conclusion that defense counsel’s seven-minute absence

during a six-day trial requires a presumption of prejudice is unprecedented and

wrong. Cronic carved out only a “narrow exception” to the general requirement

that a defendant must affirmatively prove prejudice from an error involving

counsel; the presumption of prejudice it created is limited to circumstances so

grave that they amount to a total failure or complete deprivation of counsel. See

Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994); see also United States

v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047 (1984); Strickland v.

Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067 (1984); Stano v. Dugger,

921 F.2d 1125, 1153 (11th Cir. 1991) (en banc) (“Cronic’s presumption of

prejudice applies to only a very narrow spectrum of cases where the circumstances

leading to counsel’s ineffectiveness are so egregious that the defendant was in

45 Case: 12-15093 Date Filed: 08/05/2014 Page: 46 of 101

effect denied any meaningful assistance at all.”) (quotation marks omitted)

(emphasis added). Those circumstances include “the complete denial of counsel”

at a “critical stage of [the] trial” and counsel’s “entire[] fail[ure] to subject the

prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659, 104

S.Ct. at 2047 (emphasis added).

For example, the Court in Cronic cited Hamilton v. Alabama, 368 U.S. 52,

82 S.Ct. 157 (1961), where prejudice was presumed when the defendant was

entirely denied any counsel at his arraignment, and White v. Maryland, 373 U.S.

59, 83 S.Ct. 1050 (1963), where prejudice was presumed after the defendant was

entirely denied counsel at a preliminary hearing. Cronic, 466 U.S. at 659, 104

S.Ct. at 2047. Here, by contrast, defense counsel was present during more than

99.5% of Roy’s trial, which can hardly be characterized as the “complete denial of

counsel” at a critical stage or an “entire[] fail[ure] to subject the prosecution’s case

to meaningful adversarial testing.” See id. Counsel vigorously represented Roy.

Among other things, he cross-examined Deputy Longson for 45 pages of the trial

transcript and called his own competing expert witness to undermine Longson’s

testimony.

Given the “very narrow spectrum of cases” to which the Cronic exception to

the actual prejudice requirement applies, we have held en banc that the burden of

establishing that an error warrants Cronic’s presumption of prejudice is “a very

46 Case: 12-15093 Date Filed: 08/05/2014 Page: 47 of 101

heavy one.” Stano, 921 F.2d at 1153 (quotation marks omitted). Both the

difficulty of carrying that “very heavy” burden and the “very narrow” scope of the

Cronic exception are evident from the fact that the Supreme Court has repeatedly

refused to apply it. For example, the Court has held that the Cronic exception did

not apply, and the usual showing of actual prejudice was required, where trial

counsel failed to present any mitigating evidence or any final argument during the

penalty phase of a capital trial. Bell v. Cone, 535 U.S. 685, 692–98, 122 S.Ct.

1843, 1849–52 (2002). The Court also has held that Cronic did not apply, and a

showing of actual prejudice was required, where trial counsel without the

defendant’s consent conceded that the defendant was guilty of capital murder.

Florida v. Nixon, 543 U.S. 175, 178, 190–91, 125 S.Ct. 551, 555, 562–63 (2004).

Not once in the thirty years since the Cronic decision was issued has the Supreme

Court ever found that its presumptive prejudice rule applied. The scope of the rule

is that narrow; the burden of showing that it applies is that heavy.

Even in the Cronic case itself, the Court did not find that the Cronic

exception applied. That case involved a woefully inexperienced, young attorney

who had been appointed counsel in a complex mail fraud case only 25 days before

trial, a case that the government had investigated for over four-and-a-half years

during which it reviewed thousands of documents. Cronic, 466 U.S. at 649, 662–

66, 104 S.Ct. at 2041, 2049–51. Despite those extreme facts, the Court refused to

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presume prejudice, requiring instead that the defendant show that he actually was

prejudiced. The Supreme Court’s insistence on confining the Cronic exception to

narrow boundaries is evident from the fact that in Bell, Nixon, and Cronic itself the

Court reversed the decisions of lower courts that had presumed prejudice. See

Nixon, 543 U.S. at 189–93, 125 S.Ct. at 561–63; Bell, 535 U.S. at 688, 702, 122

S.Ct. at 1847, 1854; Cronic, 466 U.S. at 666–67, 104 S.Ct. at 2051. And in all of

those cases, the risk of prejudice to the defendant was much greater than the risk of

prejudice to Roy from his lawyer’s seven-minute absence during a six-day trial.

The opinions in Cronic and Strickland indicate that Cronic’s narrow

exception to the requirement that actual prejudice be shown rests in large part on

considerations of judicial economy applicable only to rare circumstances. See

Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (“There are, however, circumstances

that are so likely to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified.”) (emphasis added); Strickland, 466 U.S. at 692, 104

S.Ct. at 2067 (“Prejudice in these [Cronic] circumstances is so likely that case-by-

case inquiry into prejudice is not worth the cost.”) (emphasis added). The rare

circumstances are those in which the likelihood of prejudice is so high that there is

no point in wasting time looking into it. This case does not involve one of those

rare circumstances any more than the Bell, Nixon, and Cronic cases did.

B. A Single Inculpatory Question and Answer Does Not Qualify as a “Stage” of a Trial 48 Case: 12-15093 Date Filed: 08/05/2014 Page: 49 of 101

The majority’s strategy for escaping the narrow confines of Cronic, a

decision which presumes prejudice only when defense counsel is absent or not

functioning as counsel for an entire stage of a criminal trial, is to fragment the

meaning of “stage” so that any and every inculpatory answer, or any eighteen out

of 2,745 of them in this case, is a separate stage of the case. While that

extraordinary view serves the purpose of converting Cronic’s “very narrow”

exception into a very broad one, it is indefensible. Under the majority’s view the

trial is not a stage of the case, it is instead a collection of hundreds or thousands of

stages depending on its length. Every time a witness, whether a government

witness on direct examination or a defense witness on cross-examination, provides

an inculpatory answer, a separate stage of the trial has occurred, according to the

majority. That means, in this case with 2,745 answers from witnesses for the

government, the presentation of the government’s case was not a stage of the case

but instead was more than two thousand stages of the case. See Maj. Opn. at 11–

13. That is the only way the majority can conclude that because Roy’s counsel

missed 18 answers out of 2,745 that government witnesses gave, he was absent

during a critical “stage” of the trial, or actually during eighteen critical stages.

The majority’s definition distorts the common meaning of the word “stage.”

See Random House Webster’s Unabridged Dictionary 1853 (2d ed. 2001)

(defining “stage” as “a particular phase, period, position, etc., in a process, 49 Case: 12-15093 Date Filed: 08/05/2014 Page: 50 of 101

development, or series”). When we use the word “stage” in our everyday life, and

throughout the law, we do not mean to refer to fleeting moments or small slices of

events. Instead, we use the word to refer to larger component parts of a process

that share a common characteristic. For example, adolescence is considered a

stage of life; but we would never speak of every minute, hour, or day of an

adolescent’s life as a stage of his life. But that is what the majority is doing in this

case. A stage is not a stage, in its view, but instead is every small part of every

single component of all the phases of a stage. That does not make sense.

Distorting the definition of “stage” eviscerates Cronic’s requirement that

there be “a complete denial of counsel” “at a critical stage of his trial” before a

presumption of prejudice applies. Cronic, 466 U.S at 659, 104 S.Ct. at 2047.

Denial of counsel during less than one-half of one percent of a trial, for only seven

minutes of a 31.4 hour-long trial, can hardly be called a “complete denial of

counsel” during “a critical stage” of the trial. If that is “a complete denial of

counsel” during a critical stage, what would a partial denial of counsel look like?

What would denial of counsel for less than an entire stage of a trial be?

Only by shrinking “critical stage of [the defendant’s] trial” to an

indefensibly tiny fraction of what it means can the majority reach the result it does

in today’s decision. If we defined the stage to be the prosecution’s case-in-chief,

there would not be a complete denial of counsel because Roy’s attorney was absent

50 Case: 12-15093 Date Filed: 08/05/2014 Page: 51 of 101

for only a small sliver of the government’s case. If we defined the stage to be the

testimony of any of the government’s 13 witnesses, there would not be a complete

denial of counsel because Roy’s attorney missed only a few answers of the

testimony of one of those witnesses. Even if we fragmented “stage” down to the

direct examination of any of the government’s 13 witnesses, there would still not

be a complete denial of counsel because Roy’s attorney was present during the vast

majority of Deputy Longson’s direct examination.

The majority’s redefinition of the word “stage” finds no support in the

Supreme Court decisions in this area. Instead, the Supreme Court’s decisions

show that it understands “stage,” as it used the term in Cronic, to mean a broader,

qualitatively distinct phase of a criminal proceeding, such as a post-indictment

lineup or interrogation, an arraignment, a plea or other pretrial hearing, closing

arguments as a whole, and sentencing. See Missouri v. Frye, — U.S. —, 132 S.Ct.

1399, 1407 (2012) (plea negotiations as a critical stage); Montejo v. Louisiana, 556

U.S. 778, 786, 129 S.Ct. 2079, 2085 (2009) (post-indictment interrogation as a

critical stage); Iowa v. Tovar, 541 U.S. 77, 87, 124 S.Ct. 1379, 1387 (2004) (“A

plea hearing qualifies as a critical stage.”) (quotation marks omitted); Bell, 535

U.S. at 695–96, 122 S.Ct. at 1851 (noting that a “critical stage” denotes “a step of a

criminal proceeding, such as arraignment”) (emphasis added); Gardner v. Florida,

430 U.S. 349, 358, 97 S.Ct. 1197, 1205 (1977) (sentencing as a critical stage);

51 Case: 12-15093 Date Filed: 08/05/2014 Page: 52 of 101

Herring v. New York, 422 U.S. 853, 863, 95 S.Ct. 2550, 2555 (1975) (invalidating

a statute that allowed a trial judge “to deny absolutely the opportunity for any

closing summation at all”); Kirby v. Illinois, 406 U.S. 682, 683, 92 S.Ct. 1877,

1879 (1972) (post-indictment lineup as a critical stage); Hamilton, 368 U.S. at 54–

55, 82 S.Ct. at 158–59 (complete absence of counsel from the defendant’s

arraignment); White, 373 U.S. at 59-60, 83 S.Ct. at 1051 (complete absence of

counsel from a preliminary hearing).

The Supreme Court has never suggested for a moment that a single

inculpatory question and answer, or a handful of them, is an independent or

separate “stage” of a criminal proceeding, nor has it ever suggested that a critical

stage can, or should, be subdivided into countless sub-stages. For example, in

Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953 (1967), the Supreme

Court analyzed whether the whole process of taking handwriting exemplars

qualified as a critical stage, not whether each stroke of the defendant’s pen was its

own distinct stage. And in United States v. Wade, 388 U.S. 218, 236–37, 87 S.Ct.

1926, 1937 (1967), the Court decided whether a post-indictment lineup, considered

as a whole, was a critical stage of criminal proceedings, not whether each glance of

the witness at the defendant or other moment was itself a stage.

Today’s decision is the first time that an appellate court has subdivided a

stage of criminal proceedings into hundreds or thousands of smaller stages and

52 Case: 12-15093 Date Filed: 08/05/2014 Page: 53 of 101

called them all critical. See, e.g., United States v. Ross, 703 F.3d 856, 873–74 (6th

Cir. 2012) (analyzing whether a competency hearing qualified as a critical stage);

McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir. 2010) (holding that a hearing on

a motion to compel the defendant to provide a DNA sample was not a critical stage

after considering several factors that might “make a proceeding a critical stage”)

(emphasis added); McDowell v. Kingston, 497 F.3d 757, 762–63 (7th Cir. 2007)

(discussing whether the complete testimony of a defendant constituted a critical

stage of his trial); Harrington v. Gillis, 456 F.3d 118, 132 (3d Cir. 2006) (noting

that “an appeal is a critical stage of criminal proceedings”) (emphasis added);

United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir. 1996) (noting that a

“plea withdrawal hearing” was a critical stage) (emphasis added); United States v.

Branch, 91 F.3d 699, 723 (5th Cir. 1996) (analyzing whether a pre-verdict bench

conference was a critical stage of the criminal proceedings); United States v.

Hicks, 948 F.2d 877, 885 (4th Cir. 1991) (analyzing whether “a routine

presentence interview” qualified as a critical stage of the criminal proceedings)

(emphasis added); United States v. Sayeedi, 903 F.2d 88, 91 (2d Cir. 1990) (noting

that jury selection is a critical stage and not analyzing whether every question

asked and answer given during voir dire qualified as an independent critical stage).

Even the decision that the majority relies on for its “working definition” of a

critical stage did not define “stage” the way the majority does. See Van v. Jones,

53 Case: 12-15093 Date Filed: 08/05/2014 Page: 54 of 101

475 F.3d 292 (6th Cir. 2007). In Van, the Sixth Circuit addressed whether a

“consolidation hearing” qualified as a critical stage of the proceedings against the

defendant. Id. at 293. The question, as the court framed it, was not whether seven

minutes of that hearing amounted to a “critical stage.” Nor was the question

whether a single statement made during the hearing was a “critical stage.” Instead,

the question in the Sixth Circuit’s view was whether the entire hearing, which

Van’s attorney had missed, was a critical stage.

The majority also relies on the Fifth Circuit’s en banc decision in Burdine v.

Johnson for its definition of a critical stage, but in that decision the Fifth Circuit

emphasized that “stages” are broader proceedings. 262 F.3d 336, 347 (5th Cir.

2001) (“To justify a particular stage as critical, the Court has not required the

defendant to explain how having counsel would have altered the outcome of his

specific case. Rather, the Court has looked to whether the substantial rights of a

defendant may be affected during that type of proceeding.”) (quotation marks

omitted) (emphasis added). There is no support in either the decisions of the

Supreme Court or of other federal appellate courts for the majority’s extraordinary

definition of a stage of a criminal proceeding for Cronic critical stage purposes.

C. The Adversary Process of Roy’s Trial Was Not Unreliable and Roy Did Not Suffer Prejudice

As the Supreme Court has explained, Cronic’s rarely applicable presumption

is reserved for Sixth Amendment violations that are so serious that they “make[] 54 Case: 12-15093 Date Filed: 08/05/2014 Page: 55 of 101

the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at 659,

104 S.Ct. at 2047; see also Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir.

1987) (“This Court has stated that the presumptive prejudice approach of the

Cronic dictum applies to a narrow range of cases where there is a fundamental

breakdown of the adversarial process.”) (quotation marks omitted); Chadwick v.

Green, 740 F.2d 897, 900 (11th Cir. 1984) (“Circumstances which would warrant a

presumption of prejudice . . . are those where ‘the adversary process itself is

[rendered] presumptively unreliable [by the circumstances].’”) (alterations in

original) (footnote omitted); United States v. Russell, 205 F.3d 768, 771 (5th Cir.

2000). The trial record in this case makes it abundantly clear that the adversary

process leading to Roy’s convictions on each of the five counts against him was

not unreliable, much less presumptively so. Roy suffered no prejudice on any

count because of his attorney’s seven-minute absence from the 1,884-minute trial,

and the majority’s conjecture that the testimony presented during counsel’s brief

absence “contributed to [Roy’s] conviction,” Maj. Opn. at 2, ignores the evidence

in the record.

The majority’s refusal to take a hard look at whether there was a real

possibility of actual prejudice also runs counter to the nature of a critical stage. As

the Seventh Circuit has explained, whether part of a criminal prosecution is a

critical stage “depends itself to some degree on a prejudice analysis.” United

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States v. Morrison, 946 F.2d 484, 503 n.5 (7th Cir. 1991) (“We note that despite

Cronic’s insistence on a presumption of prejudice in certain cases, the definition of

a prosecution[]’s critical stage—and hence the determination of whether a

prejudice presumption applies—depends itself to some degree on a prejudice

analysis. Even when engaging in a Cronic inquiry, then, we are never completely

loosed from the factual moorings of the case before us. The notion that Cronic and

its progeny completely obviate the need for any inquiry into the potential for

prejudice is thus not entirely accurate.”). To borrow the Seventh Circuit’s apt

words, the analysis in the majority opinion is “completely loosed from the factual

moorings of the case before us.”

As I have pointed out, all of the evidence of Roy’s guilt on Count 1, the

attempted child enticement charge, was presented while defense counsel was

present. He did not miss any of it. The brief testimony that did occur while

counsel was momentarily out of the courtroom went only to Counts 2 – 5; those

four counts involved conduct that was not even discovered by the police until after

Roy was arrested on the attempted child enticement charge and his house was

searched. The charges in Counts 2 – 5 were separate from and independent of the

Count 1 charge. See supra Part I.

Roy’s defense theory on Count 1 was that the police had entrapped him in

the reverse sting operation. He asserted in closing argument that it had been the

56 Case: 12-15093 Date Filed: 08/05/2014 Page: 57 of 101

police who were “doing the enticing.” The majority believes that the six images of

L.B. that were partially discussed while defense counsel was absent were relevant

to Roy’s entrapment defense to Count 1 because the government argued in closing

argument that all of the images, including the ones discussed during counsel’s

absence, showed Roy’s proclivity for having sex with underage girls. See Maj.

Opn. at 24–25. There are two reasons why that prejudice theory is unconvincing.

One reason is that those same six images were discussed in much greater detail and

length after counsel returned to the courtroom and, in fact, the six images were

admitted into evidence (without objection) only after counsel returned. Anything

that the initial testimony about those six images showed about Roy’s proclivity

was also shown through the testimony taken and the images that were admitted

into evidence while counsel was there.

The other reason this possibility of prejudice through proclivity theory is

unconvincing is that those six images of L.B. were only a small fraction of the total

number of hardcore photographic and video images of her that were discussed and

admitted into evidence. The vast majority of the testimony about those six images

of L.B. and all of the testimony about the numerous other pornographic images of

L.B. took place after counsel returned to the courtroom. Counsel had the

opportunity to cross-examine the witness, and he did cross-examine him for 45

pages of the trial transcript.

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Not only that, but there were also numerous pornographic images of other

minor females found on Roy’s electronic devices. Every bit of the testimony about

all of that non-L.B. child pornography came in while defense counsel was present.

And every one of the images of child pornography –– of L.B. and of other minors

–– was admitted into evidence without objection while defense counsel was

present. Roy’s proclivity was overwhelmingly proven by testimony given and

evidence admitted in the presence of his counsel.

When the government argued against Roy’s entrapment defense at closing, it

did not tell the jury to consider only the six images that Deputy Longson had

mentioned while defense counsel was absent. Instead it asked the jury to consider

all of the images and videos, stating: “He was predisposed. You know that from

all of these videos and pictures he likes to watch.” There is no doubt, and no

reason to doubt, that the adversarial process leading to Roy’s conviction on the

Count 1 charge was reliable, and he was not prejudiced by his attorney’s seven-

minute absence during which that charge did not even come up. 1

1 The majority claims that I contend that Roy’s conviction and sentence on Count 1 should stand “even if counsel’s absence taints the conviction as to Counts 2–5” because “we can separate out the evidence as to each count.” Maj. Opn. at 23–24. Just to be clear, my position is that counsel’s absence did not taint any of Roy’s convictions, including the convictions on Counts 2–5. Period. And the very fact that we can easily separate out the evidence as to each count in this case is a persuasive indication that the error in Roy’s trial was not Cronic error. Because there was no Cronic error, there is no presumption of prejudice. 58 Case: 12-15093 Date Filed: 08/05/2014 Page: 59 of 101

There is also no question that the adversarial process leading to Roy’s

convictions on Counts 2 – 5 was reliable. Again, those counts were organized by

different devices — a desktop computer, a laptop computer, a USB thumb drive,

and three CDs — that were found in Roy’s home and all of which contained child

pornography. To convict him on Counts 2 – 5, the jury had to find only that he

possessed the named device and that he knew it contained at least one image of

child pornography. Roy has never denied possessing each of those devices, nor

has he ever denied that there was child pornography on them.

Roy’s defense theory was that all of the L.B. images were taken after her

eighteenth birthday. The evidence overwhelmingly disproved that theory, but even

if the jury had somehow accepted it, even if we totally disregard not just the six

images of L.B. that were discussed in counsel’s absence but all of the L.B. images,

the other child pornography on Roy’s various electronic devices establishes his

guilt of the charges contained in Counts 2 – 5. And none of that other child

pornography was discussed, mentioned, or even alluded to during the seven

minutes while defense counsel was outside the courtroom. All of the evidence

about that other child pornography came in without objection during the 1,877

minutes, or more than 31 hours, that counsel was present and fully participating in

the trial. Because of that evidence, Roy would have been just as guilty of the

59 Case: 12-15093 Date Filed: 08/05/2014 Page: 60 of 101

Count 2 – 5 charges if the pornographic images and videos of L.B. had never been

mentioned, never been discovered, never existed.

The majority seeks to render irrelevant the fact that Roy could not possibly

have suffered prejudice on any count of conviction by simply labeling counsel’s

absence a “structural error” that precludes any examination of how the evidence

related to each count.2 Maj. Opn. at 25. Its circular reasoning is that defense

counsel’s temporary absence was a Cronic error and all Cronic errors are structural

errors, therefore the temporary absence was structural error. Maj. Opn. at 17–18. I

do not dispute that Cronic errors are structural errors, or at least akin to them,

because they require automatic reversal without any inquiry into the existence of

actual prejudice. See United States v. Arbolaez, 450 F.3d 1283, 1295 (11th Cir.

2006) (explaining that the “constructive denial of counsel is legally presumed to

result in prejudice and thus to constitute a structural error”) (quotation marks

omitted). But calling Cronic errors structural errors does not add anything to the

majority’s analysis. Instead, it simply assumes the conclusion that the temporary

absence was Cronic error.

2 The majority asserts that looking into whether there was prejudice as to each count “makes little sense because we would have to speculate about what evidence the jury may have applied in its deliberations as to each individual count.” Maj. Opn. at 25. The majority appears to disregard the fact that every inquiry into prejudice is inherently speculative, yet courts do it all the time. Cf. Sears v. Upton, — U.S. —, 130 S.Ct. 3259, 3266 (2010) (observing that Strickland’s prejudice inquiry “will necessarily require a court to speculate”) (quotation marks omitted). 60 Case: 12-15093 Date Filed: 08/05/2014 Page: 61 of 101

If defense counsel’s temporary absence were a Cronic error, it would

necessarily follow that it was a structural error, which is a type of error that, by

definition, “affect[s] the framework within which the trial proceeds” and prevents

the trial from “reliably serv[ing] its function as a vehicle for determination of guilt

or innocence.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265

(1991) (emphasis added). As the facts of this case and the previous discussion

show, defense counsel’s brief absence did not prevent him from vigorously

defending Roy, did not affect the entire framework of Roy’s trial, and did not

undermine the reliability of the trial as a mechanism for determining Roy’s guilt or

innocence. The seven-minute absence during a trial that lasted more than 31 hours

was not a structural error.

The majority attempts to bolster its “structural error” conclusion by asserting

that structural errors are ones in which a reviewing court can only speculate as to

their effect. Maj. Opn. at 23. That view won’t work because, as the Supreme

Court has pointed out, any and every inquiry into prejudice is necessarily

speculative. See Sears, 130 S.Ct. at 3266 (observing that Strickland’s prejudice

inquiry “will necessarily require a court to speculate”). An error is not transformed

into structural error simply because in determining whether it had prejudicial effect

a reviewing court must engage in speculation. If it were, every error would be

structural error mandating reversal; there would be no harmless error review.

61 Case: 12-15093 Date Filed: 08/05/2014 Page: 62 of 101

Yet the harmless error doctrine is alive and well. And as the Supreme

Court has repeatedly held, the majority of constitutional errors that occur at a

criminal trial may be examined for prejudicial effect and do not require reversal if

they are harmless. In Fulminante, the Court listed a dozen and a half of its

decisions establishing this point, which refutes the majority’s position:

Since this Court’s landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which we adopted the general rule that a constitutional error does not automatically require reversal of a conviction, the Court has applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. See, e.g., Clemons v. Mississippi, 494 U.S. 738, 752–754, 110 S.Ct. 1441, 1450–1451, 108 L.Ed.2d 725 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California, 491 U.S. 263, 266, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501–504, 107 S.Ct. 1918, 1921–1923, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 2147, 90 L.Ed.2d 636 (1986) (erroneous exclusion of defendant’s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117–118, and n. 2, 104 S.Ct. 453, 454–455, and n. 2, 78 L.Ed.2d 267 (1983) (denial of a defendant’s right to be present at trial); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (improper comment on defendant’s silence at trial, in violation of the Fifth Amendment Self–Incrimination Clause); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 62 Case: 12-15093 Date Filed: 08/05/2014 Page: 63 of 101

(1982) (statute improperly forbidding trial court’s giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause); Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231–232, 93 S.Ct. 1565, 1570– 1571, 36 L.Ed.2d 208 (1973) (admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)); Chambers v. Maroney, 399 U.S. 42, 52–53, 90 S.Ct. 1975, 1981– 1982, 26 L.Ed.2d 419 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1, 10–11, 90 S.Ct. 1999, 2003–2004, 26 L.Ed.2d 387 (1970) (denial of counsel at a preliminary hearing in violation of the Sixth Amendment Confrontation Clause).

499 U.S. at 306–07, 111 S.Ct. at 1263–64. By insisting that a structural error

exists whenever a reviewing court cannot know for certain what effect, if any, the

error had, the majority expands the category of structural errors to include most or

all errors despite the Supreme Court’s recent reminder that only a “very limited

class of errors” qualifies as structural error. United States v. Davila, — U.S. —,

133 S.Ct. 2139, 2149 (2013).

The Supreme Court’s decision in Fulminante illustrates why defense

counsel’s brief absence in this case was not a structural error. In that case the

Supreme Court held that the improper admission of a coerced confession was

subject to harmless error review even though “confessions have [a] profound

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impact on the jury, so much so that we may justifiably doubt its ability to put them

out of mind even if told to do so.” Fulminante, 499 U.S. at 296, 111 S.Ct. at 1257

(quotation marks omitted). If the erroneous admission of a confession, which may

have had a “profound impact on the jury” is not structural error, then neither is the

erroneous admission of inculpatory evidence presented during counsel’s brief

absence. That is particularly true where that inculpatory evidence is repeated in

counsel’s presence along with other overwhelming evidence of guilt.

D. The Majority’s Decision Is an Outlier and the Reasons It Gives for Presuming Prejudice Are Not Persuasive

In its effort to persuade us that the complete absence of prejudice should not

matter, the majority puts forward some decisions from our sister circuits. It also

gives several reasons why it believes that Cronic’s presumption of prejudice should

apply when defense counsel misses the presentation of any inculpatory evidence,

even a single question and answer. That effort to persuade fails.

1. The Decisions of Other Circuits

Today’s decision makes us the only court of appeals to hold that any

attorney absence during the presentation of any directly inculpatory evidence, even

a single question and answer, is “so likely to prejudice the accused that the cost of

litigating [its] effect in a particular case is unjustified.” Cronic, 466 U.S. at 658,

104 S.Ct. at 2046. This decision is an outlier that puts us way out there.

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The majority asserts that “no Circuit has applied harmless error review upon

a finding that a defendant was deprived of his lawyer during the presentation of

inculpatory testimony to the jury.” Maj. Opn. at 19. That is somewhat misleading

because it implies that all circuits have treated attorney absences as Cronic errors,

which they have not.3 In United States v. Kaid, for example, the Second Circuit

was asked to apply Cronic’s presumption to a factual scenario remarkably similar

to the one in this case, and it refused to do so. 502 F.3d 43 (2d Cir. 2007). In Kaid

several codefendants were convicted of conspiring to commit money laundering

and trafficking in contraband cigarettes. Id. at 45. Defense counsel for one of

those codefendants, Azzeaz Saleh, missed 20 minutes of his client’s trial because

he misunderstood when the judge planned to continue the trial after a lunch break.

Id. at 44–45. During defense counsel’s absence, the government presented

evidence that was highly inculpatory of Saleh. The government showed video

footage of Saleh and other codefendants purchasing the contraband cigarettes that

were in issue at the trial, and it called a witness to the stand who testified “at nine

3 Actually, that is not the only part of that sentence from the majority opinion that is wrong. The first clause of the sentence says: “Despite other Circuits’ willingness to apply harmless error review to Cronic error generally . . . .” Maj. Opn. at 19. No circuit has been willing to apply harmless error review to a Cronic error, nor should one. As I have explained, if there is Cronic error, no prejudice need be shown. The majority cites Siverson v. O’Leary, 764 F.2d 1208, 1217–19 (7th Cir. 1985), as an example of a decision applying the harmless error rule to Cronic error, but the Seventh Circuit did not find Cronic error in that case. Instead, it found that the absence of counsel during jury deliberations, including when the judge questioned the jury about whether it had reached a verdict, and counsel’s absence during the return of the verdict was not Cronic error and was harmless. Id. at 1217–21. 65 Case: 12-15093 Date Filed: 08/05/2014 Page: 66 of 101

separate points that the video showed Saleh.” Id. at 45. On appeal Saleh argued

that he was entitled to a presumption of prejudice because his attorney had been

absent during a critical stage of the trial, id. at 46, but the Second Circuit

unequivocally rejected that argument and applied Strickland to Saleh’s ineffective

assistance claim. Id. at 46–47. The Kaid court affirmed Saleh’s convictions after

concluding that he had not suffered prejudice from his counsel’s 20-minute

absence because (1) counsel had been able to challenge the admissibility of the

identification testimony the day before he was absent from the courtroom, and (2)

after he returned to the courtroom counsel had been able to cross-examine the

witness who had repeatedly identified Saleh in the video. Id. at 47. The

circumstances in our case are even stronger for affirmance than those in Kaid,

because there is no indication in the Kaid opinion that the evidence counsel missed

was repeated after he returned to the courtroom; here, we know it was. The Kaid

decision is correct, and it is important.

The majority attempts to distinguish Kaid, by arguing that the Second

Circuit’s decision “has nothing to do with Cronic” because the defendant in Kaid

raised an ineffective assistance of counsel claim and the court analyzed the claim

in that case under Strickland. See Maj. Opn. at 19. The majority’s argument

ignores the fact that Cronic concerned ineffective assistance of counsel claims, and

that its sole function is to serve as a rare exception to the requirement that a

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defendant show prejudice from an error relating to counsel. See Cronic, 466 U.S.

at 666, 104 S.Ct. at 2051 (concluding that “[t]his case is not one in which the

surrounding circumstances make it unlikely that the defendant could have received

the effective assistance of counsel”) (emphasis added). Indeed, the very issue

presented to the Second Circuit by the argument of the petitioner in that case was

whether Cronic’s presumption of per se prejudice applied, or instead the petitioner

had to show prejudice. See Kaid, 502 F.3d at 46 (“Saleh argues, however, that the

above mentioned Strickland requirements, particularly the prejudice prong, are not

necessary because his counsel’s absence constituted per se ineffective

assistance.”). The petitioner in Kaid argued that Cronic meant he did not have to

show prejudice. See Brief for Defendant-Appellant Azzeaz Saleh at 9, Kaid, 502

F.3d 43 (No. 05-4470-cr), 2006 WL 5309723 (citing Cronic in support of Saleh’s

argument that he was entitled to a presumption of prejudice). The Second Circuit

rejected Saleh’s Cronic contention and held that he had to show that his attorney’s

absence from trial prejudiced him. And it held that he failed to do so, even though

his counsel missed the presentation of twenty minutes of inculpatory testimony (as

compared to seven minutes in this case). The majority concedes that “the Second

Circuit worked under Strickland’s framework, not Cronic’s,” Maj. Opn. at 19, but

it fails to recognize what that means, which is that the Second Circuit rejected the

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argument that Cronic should apply to a brief absence of counsel from trial during

the presentation of inculpatory testimony.

Although the majority cites various decisions from other circuit courts of

appeals in support of its claim that Cronic applies when counsel is absent during

the presentation of any inculpatory evidence, all of those decisions are

distinguishable from the present case. The circuits that have applied Cronic’s

presumption to attorney trial absences have done so only when those absences

were substantial. In Russell, for example, the Fifth Circuit applied Cronic when

counsel missed two entire days of trial. 205 F.3d at 669–71. That case did not

involve an absence of only seven minutes of a six-day trial, and it did not involve a

situation where all of the questions and answers that counsel missed were repeated

after he returned to the courtroom. The Fifth Circuit also applied Cronic to a

constructive attorney absence when defense counsel was “repeatedly unconscious

through not insubstantial portions of the defendant’s capital murder trial,” having

“repeatedly dozed and/or actually slept during substantial portions of [the] capital

murder trial.” Burdine, 262 F.3d at 340–41. Seven minutes is not a substantial

portion of a six-day trial. And, in any event, there is no indication in the Burdine

opinion that the testimony defense counsel missed while unconscious was repeated

in full after he returned to a state of consciousness.

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The Sixth Circuit applied the Cronic presumption in a case where defense

counsel missed at least 100 minutes of trial. 4 See Green v. Arn, 809 F.2d 1257,

1260–61 (6th Cir. 1987), vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52

(1987), reinstated, 839 F.2d 300 (1988). But a hundred minutes is not seven

minutes, and the Green court acknowledged that “some absences by a criminal

4 Although the majority points out that there may be some ambiguity in the Green opinion concerning the length of defense counsel’s absence, see Majority Opn. at 14 n.2, portions of the transcript quoted in the Green decision indicate that the absence was not brief. See Green, 809 F.2d at 1260–61 (noting that defense counsel for Green’s codefendants had begun cross-examining a witness at 2 pm and by 3:40 pm the defendant’s trial counsel still had not returned to the courtroom). The majority also fails to acknowledge that Green alleged that her attorney had been absent during other portions of the criminal proceedings against her, including an entire hearing on a suppression motion, the government’s closing arguments at trial, and when the jury asked the court questions during its deliberations. Id. at 1259 n.1. Nothing like that happened in this case. Even though defense counsel in Green missed far more of the trial than Roy’s counsel missed in this case, the decision to presume prejudice was ardently attacked by a dissenting judge in that case. Judge Boggs recognized that the majority’s decision in Green went well beyond Cronic, created perverse incentives for defense attorneys, and unduly burdened trial judges. He noted that Cronic applied where there was a “complete denial of counsel” at a critical stage, and that a presumption of prejudice was warranted only when there was a denial of counsel that was “complete in terms of the process of truth-seeking.” Id. at 1264 (Boggs, J., dissenting) (quotation marks omitted). He argued that there was no complete denial of counsel in Green because of “the episodic nature of the absence.” Id. at 1265. The majority argues that “Judge Boggs, the dissenter in Green, would seem to join the majority in this case.” Maj. Opn. at 26. That is a mistaken view of his position, as this excerpt from his dissenting opinion in that case makes clear: Here, there is no hint or even speculation that what went into the record or into the ears of the jury would have differed if the error had not occurred. Nor is this an instance where counsel’s presence to object or take a strategic decision could have been crucial, nor where an opportunity was irrevocably waived. It elevates form over substance to equate what occurred here to the true denials of counsel cited in Cronic. Green, 809 F.2d at 1265 (Boggs, J. dissenting). Exactly the same is true in this case where the majority has elevated form over substance to reverse convictions based on a false analogy to the denial of counsel during an entire stage of a criminal prosecution, the situation to which Cronic applies. 69 Case: 12-15093 Date Filed: 08/05/2014 Page: 70 of 101

defendant’s attorney might be so de minimis that there would be no constitutional

significance.” Id. at 1261. The counsel in that case missed cross-examining an

important prosecution witness because he had left the trial to attend to other

business. Id. at 1259–60. That did not happen in the present case where counsel

cross-examined the witness and did so for 45 pages of the trial transcript. Instead

of being “substantially similar” to this case, as the majority believes, the facts in

Green are clearly distinguishable. In another case the Sixth Circuit again applied a

presumption of prejudice where defense counsel “was absent on numerous

occasions during trial,” including for the entire testimony of two witnesses against

him and the presentation of incriminating wiretap evidence. Olden v. United

States, 224 F.3d 561, 568–69 (6th Cir. 2000). That did not happen here.

In United States v. Patterson, 215 F.3d 776, 783, 785–86 (7th Cir. 2000),

vacated in part on other grounds, 531 U.S. 1033, 121 S.Ct. 621 (2000), the Seventh

Circuit held that an inquiry into prejudice was unnecessary when defense counsel

missed a lot of the trial. And I mean a lot. He “missed seven days of [a police

officer’s] testimony, four of five sessions of the jury instruction conference, most

of the other defendants’ closing arguments, and proceedings to address notes from

the jury during deliberations.” Id. at 783. Seven days is not seven minutes.

The attorney absences in all of the decisions from other circuits that the

majority relies on were lengthy –– far longer than in this case. In addition, the trial

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court was aware of defense counsel’s absence in almost every one of those cases. 5

And in none of those cases was the testimony that counsel had missed repeated

after he returned to the courtroom, as it was here. While it may be said that the

absences of counsel in the cases cited by the majority were so substantial and “so

likely to prejudice the accused that the cost of litigating their effect [was]

unjustified,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046, the same cannot be said of

the brief absence in this case. The closest case to the facts of this one is Kaid,

where the Second Circuit refused to presume prejudice and affirmed the

convictions. Today’s decision stands alone as the most extreme application of

Cronic. It has no peers.

2. Temporary Attorney Absences Are Not Always Prejudicial and Courts Can Determine Whether Prejudice Occurred

In support of its position, the majority engages in a lengthy discussion to

establish that Cronic error and structural error are not subject to harmless error

review. See Maj. Opn. at 17–20. Everyone knows that. That is not the issue. The

issue is whether a brief attorney absence during the presentation of any inculpatory

evidence at all is always Cronic error no matter what. If it is a Cronic error, then it

is a structural error and not subject to review for harmlessness. If it is not a Cronic

5 The only clear exception is that the trial court in Burdine was unaware that defense counsel was sleeping. Burdine, 262 F.3d at 389 (Barksdale, J., dissenting). The Patterson decision does not indicate whether the trial court was aware of the defense attorney’s absence in that case.

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error, then we review for harmlessness if the error was properly preserved at trial

or only for plain error if it was not.

The majority asserts that whenever an attorney is not present during any part

of the presentation of inculpatory evidence, no matter how small the part he

missed, we should find Cronic error and presume prejudice because determining

whether there actually was prejudice would be “an exacting and problematic

undertaking” and a court can never “accurately determine whether and to what

extent counsel’s absence prejudiced” a defendant. Maj. Opn. at 20. The majority

relies on a law review article for its belief about that instead of on relevant

decisions that provide sounder guidance. See, e.g., United States v. Osterbrock,

891 F.2d 1216, 1218 (6th Cir. 1989) (applying harmless error review to attorney’s

trial absence when jury verdict was returned); Siverson v. O’Leary, 764 F.2d 1208,

1218–19 (7th Cir. 1985) (applying harmless error review to attorney’s absence

during jury deliberations and return of verdict); United States v. Calabro, 467 F.2d

973, 988–89 (2d Cir. 1972) (same).

Many state appellate courts have concluded that courts are capable of

determining whether the temporary absence of an attorney prejudiced a defendant.

See Jackson v. State, 983 So. 2d 562, 574–77 (Fla. 2008) (applying harmless error

analysis to trial court’s decision to hear testimony from the victim for purposes of

sentencing the defendant while defense counsel was absent); Wilson v. State, 764

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So. 2d 813, 816–19 (Fla. 4th DCA 2000) (applying harmless error analysis to

defense counsel’s absence during jury deliberations and proceedings involving a

question from the jury); State v. Scherzer, 694 A.2d 196, 237–40 (N.J. Super. Ct.

App. Div. 1997) (applying harmless error analysis where defense counsel was

absent “from many pretrial proceedings; a portion of jury voir dire; several days of

testimony during trial, including the entire testimony of the State’s expert

witness . . . ; parts of [the] codefendants’ and the prosecutor’s summations; a

portion of the charge conference; some of the jury’s questions during deliberations;

and also the reading of the jury’s verdict”); Hodges v. State, 116 S.W.3d 289, 292–

94 (Tex. App. 2003) (applying harmless error analysis to defense counsel’s

absence during presentation of adverse testimony from a detective during the

penalty phase of a case). In the Hodges decision, the Texas Court of Criminal

Appeals stated that it agreed with our decision in Vines that a temporary absence

of counsel during part of the trial does not necessarily infect the entire trial and

preclude application of the harmless error doctrine. Hodges, 164 S.W.3d at 294

n.7.

In our decision in Vines, we specifically held that:

[T]he temporary absence of a defendant’s trial counsel during a portion of the actual trial does not necessarily affect the conduct of the entire trial. While trial counsel may exercise poor judgment in absenting himself or herself from a portion of a trial, such flawed judgment does not necessarily infect the entire trial.

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28 F.3d at 1129 (emphasis omitted). We determined in Vines that harmless error

analysis was appropriate after concluding that the attorney absence in that case was

neither Cronic error nor structural error, but instead a “trial error.” Id. at 1128–29.

Like the attorney’s absence in Vines, the attorney’s brief absence in this case does

not qualify as Cronic error or structural error because, as explained in Part II.C

above, it did not render Roy’s entire trial unreliable. See id. at 1129 (explaining

that structural defects, such as “the total deprivation of counsel,” “necessarily

affect the conduct of the entire trial” and involve errors so egregious that “in their

absence no criminal trial can be deemed reliable”).

Although our conclusion in Vines that the Cronic presumption of prejudice

did not apply came after we had found that the evidence introduced during

counsel’s absence was not directly inculpatory, see Vines, 28 F.3d at 1128, we did

not hold that the Cronic presumption applies whenever any inculpatory evidence is

presented during counsel’s absence. We could not have held that in Vines because

those were not the facts before us in that case. See Watts v. BellSouth

Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial decisions

cannot make law beyond the facts of the cases in which those decisions are

announced.”); see also Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024,

1031 (11th Cir. 2003). We have never held that prejudice is conclusively

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presumed if any inculpatory evidence at all is taken in counsel’s absence, and we

should not be holding that today.

Any error involving the seven-minute absence of Roy’s counsel during the

testimony of one of thirteen government witnesses during a six-day trial, where the

same evidence also came in during testimony the witness gave after counsel

returned, is at most a “trial error.” As we explained in Vines:

A trial error is an error which occurs during the presentation of a case to a jury, and which may therefore be quantitatively assessed . . . in order to determine whether [it] was harmless.

28 F.3d at 1129 (quotation marks and brackets omitted). Again, the record in this

case is such that we can assess the testimony that occurred in the seven-minute

absence of Roy’s counsel to determine whether that absence was harmless. See

supra Part II.C.

Despite these controlling principles, the majority insists that prejudice must

be presumed because the absence of counsel during the presentation of inculpatory

evidence “eliminates the opportunity to decide whether to lodge an objection and

how to frame the objection.” Maj. Opn. at 13. That assertion, as well as the

majority’s claim that Roy’s attorney “could not have known” what evidence he

missed, Maj. Opn. at 21, is simply not correct. A defense attorney who misses any

moment of the direct examination of a government witness could, upon returning

to the courtroom, ask that the transcript be read back outside the presence of the

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jury and request that any objectionable testimony be stricken from the record. And

once that testimony has been read back to defense counsel, he would have full

knowledge of the witness’ statements, which he could then challenge on cross-

examination.

In this case, as far as we know, Roy’s attorney did not ask for an opportunity

to review the portion of Deputy Longson’s testimony that he had missed. But we

do know that there was no lost-objection prejudice from his seven-minute absence

because no exhibits were admitted during that time, and when the same testimony

was presented immediately after counsel returned, he did not object to any of it.

There is no valid objection that he could have made had he been there the seven

minutes he was absent (Roy’s appellate counsel has not suggested one), and

counsel was able to vigorously cross-examine Longson about his testimony after

he returned to the courtroom.

The defect in the majority’s reasoning is also apparent from the fact that

courts regularly analyze whether an attorney’s failure to object resulted in

prejudice. See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 366, 113 S.Ct. 838, 841

(1993) (determining whether petitioner was prejudiced by trial counsel’s “failure to

make an objection in a state criminal sentencing proceeding” in a capital case);

Gordon v. United States, 518 F.3d 1291, 1299–1301 (11th Cir. 2008) (determining

whether trial “counsel’s failure to object to an absence of inquiry about the right to

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allocute” prejudiced the habeas petitioner); Purvis v. Crosby, 451 F.3d 734, 738

(11th Cir. 2006) (determining whether trial counsel’s failure to object to the

closure of the courtroom during a young victim’s testimony in a child molestation

trial prejudiced the habeas petitioner); Sims v. Singletary, 155 F.3d 1297, 1309

(11th Cir. 1998) (noting that “assuming arguendo that counsel’s failure to object to

the prosecutor’s comments constituted ineffective assistance, [the petitioner] has

shown no prejudice as a result of this inaction”). Although the majority contends

that the prejudice inquiry is an “exacting and problematic undertaking,” there is

nothing unusual or unusually difficult about determining whether a failure to object

was prejudicial. Courts do it all the time. The majority’s position that we cannot

or should not determine whether a failure to object was prejudicial is contrary to

binding precedent and our regular practice.

The majority also asserts that counsel’s absence during the presentation of

any inculpatory testimony “eliminates . . . the ability to conduct cross-

examination.” Maj. Opn. at 13. Not necessarily, and not in this case. As I

mentioned earlier, once counsel returns to the courtroom he can ask to have the

transcript read back to him outside the presence of the jury. That would provide

him with full knowledge of the witness’ statements, which he could then challenge

on cross-examination. And as this case illustrates, that approach may not even be

necessary where the witness repeats all of his testimony after defense counsel

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returns to the courtroom. It is obvious in this case that defense counsel’s absence

for seven minutes of Longson’s testimony did not eliminate his ability to cross-

examine that witness. The record shows that the testimony Deputy Longson gave

during counsel’s seven-minute absence was repeated immediately after he

returned, and counsel vigorously cross-examined Longson about it.

And even if defense counsel’s ability to cross-examine Longson had been

impeded, the majority’s reasoning is flawed because it assumes that any gap or

shortcoming in cross-examination cannot be examined for its prejudicial effect.

Although the majority may believe that it is “an exacting and problematic” task to

do so, courts regularly inquire into whether an attorney’s failure to cross-examine a

witness in a particular way or to use a particular strategy or tactic in cross-

examination prejudiced the defendant. See, e.g., Strickler v. Greene, 527 U.S. 263,

289–95, 296, 119 S.Ct. 1936, 1952–55 (1999) (determining whether petitioner had

shown prejudice from being deprived of any opportunity to use certain withheld

documents to impeach a key prosecution witness, and finding that he had); Fugate

v. Head, 261 F.3d 1206, 1220 (11th Cir. 2001) (determining whether petitioner had

shown prejudice from counsel’s failure during cross-examination to impeach the

sole eyewitness to the murder with his prior inconsistent statement to the police,

and finding that he had not); id. at 1220–21 (determining whether petitioner had

shown prejudice from counsel’s failure during cross-examination of the medical

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examiner to impeach him with inconsistencies between his autopsy report and his

testimony, and finding that he had not); Nixon v. Newsome, 888 F.2d 112, 116

(11th Cir. 1989) (determining whether petitioner had shown prejudice from his

counsel’s failure during cross-examination to impeach the key prosecution witness

with her prior inconsistent testimony, and finding that he had); Smith v.

Wainwright, 799 F.2d 1442, 1444 (11th Cir. 1986) (determining whether petitioner

had shown prejudice from his counsel’s failure during cross-examination to

impeach the two prosecution witnesses with their prior inconsistent statements, and

finding that he had not). All of those decisions and others show that courts can,

and regularly do, determine whether a failure to cross-examine a witness about a

particular fact or in a particular way was prejudicial. There is nothing unusual or

especially difficult about doing that. If there were, we would not do it routinely.

Yet we do. We could and should do it in this case.

The majority also theorizes that prejudice must be presumed from defense

counsel’s brief absence because “a defendant may irretrievably lose available

defenses and rights during direct testimony of a prosecution witness.” Maj. Opn.

at 13. The first problem with that theory is that it confuses presentation of the

government’s case at trial with arraignment. The only authorities that the majority

cites for its proposition are two decisions that involved a defense attorney’s

absence from arraignment. See Hamilton, 368 U.S. at 54, 82 S.Ct. at 159; White,

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373 U.S. at 60, 83 S.Ct. at 1051. There is a difference between arraignment, where

certain defenses must be asserted or lost, and the direct examination of a

prosecution witness during the middle of a trial, where the defendant is not

required to assert defenses.

The second problem with the majority’s lost-defenses theory is that, even if

a defense is somehow lost by defense counsel missing a few minutes of a direct

examination, courts regularly inquire into whether a defense attorney’s failure to

raise a defense at trial prejudiced the defendant. See Roberts v. Comm’r, Ala.

Dep’t of Corr., 677 F.3d 1086, 1090–93 (11th Cir. 2012) (insanity defense); Pietri

v. Fla. Dep’t of Corr., 641 F.3d 1276, 1280–84 (11th Cir. 2011) (voluntary

intoxication defense); West v. United States, 631 F.3d 563, 567–68 (1st Cir. 2011)

(entrapment defense); Currier v. United States, 320 F.3d 52, 56–57 (1st Cir. 2003)

(necessity defense). We did just that, just last year, when we held that an

attorney’s failure to assert a voluntary intoxication defense on behalf of a capital

defendant was not prejudicial. See Reaves v. Sec’y, Fla. Dep’t of Corr., 717 F.3d

886, 900–05 (11th Cir. 2013). The majority, presumably, would have decided the

“lost defenses” cases differently than this Court did in Roberts, Pietri, and Reaves

because it believes that looking into prejudice is an “exacting and problematic”

endeavor. But binding precedent is binding precedent, and the majority’s position

that a prejudice inquiry is impossible, or at least should not be permitted, on a lost-

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defense claim is contrary to all of that binding precedent. In any event, neither the

majority nor Roy’s appellate counsel has been able to point to any conceivable

defenses that were lost by defense counsel’s seven-minute absence in this case.

Although the majority does not argue this, a defense counsel’s temporary

absence might also be prejudicial if it results in the failure to present evidence

countering the testimony of an adverse witness. But that possibility does not

require a presumption of prejudice because courts regularly determine whether an

attorney’s failure to present evidence prejudiced the defendant. See, e.g., Hinton v.

Alabama, –– U.S. ––, 134 S.Ct. 1081, 1089–90 (2014) (vacating and remanding to

allow the district court to determine whether petitioner was prejudiced by counsel’s

failure to request additional funding in order to hire an adequate expert);

Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 791–92 (2011) (determining

whether petitioner was prejudiced by counsel’s failure to present expert testimony

on serology, pathology, and blood spatter patterns); Jackson v. Herring, 42 F.3d

1350, 1362, 1368–69 (11th Cir. 1995) (determining whether petitioner was

prejudiced by counsel’s failure to investigate and present mitigating evidence at

sentencing). This kind of prejudice inquiry is old hat for courts. We do it often,

without any suggestion that it is impossible or too much trouble. It is part of our

judicial duties.

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Despite all of this long-standing precedent, the majority insists that we must

presume prejudice because “[i]t would be difficult, if not impossible, for us as a

reviewing court to discern, on a cold record, the reaction of the jury to the evidence

presented and, therefore, to what extent counsel may have been able to react in a

manner that would improve his client’s likelihood of acquittal.” Maj. Opn. at 20.

Really? Does this mean that in order to be effective an attorney must constantly

monitor the jurors’ faces for reactions to the testimony? Does it mean that if

defense counsel focuses on the witness or is reading his notes during the testimony,

prejudice must be presumed from his failure to watch “the reaction of the jury to

the evidence”? In any event, the majority’s assertion, which is supported only by

citation to a Nebraska Law Review article, goes against all of the binding

precedent cited in this section, in addition to all of our case law dealing with claims

of ineffective assistance of counsel, which illustrates that courts regularly rely on a

“cold record” to determine whether prejudice actually occurred.

III. The Majority’s Holding Will Have Far Reaching Adverse Effects

Under the majority’s holding and reasoning, if defense counsel misses

even a single inculpatory question and answer, courts in this circuit must

conclusively presume prejudice and set aside any conviction no matter how clearly

and irrefutably the record establishes that there was no prejudice. Even when a

court is firmly convinced there is no prejudice. No exceptions. It does not matter

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what the facts are, it does not matter how overwhelming the other evidence of guilt

is, it does not matter if no reasonable person could believe that counsel’s

momentary absence made any difference at all. Prejudice is not required because it

is conclusively presumed, which in this instance means that we must pretend that

something exists even if we know that it does not. Nothing else will ever matter

but the majority’s ironclad rule that nothing else matters. And the majority’s rule

has a wide kill zone. Not only must the conviction on the count that the missed

testimony concerns be extinguished, but every conviction on every count in the

indictment must be as well. No exceptions.

The majority makes a futile attempt to persuade us that maybe — just

maybe — its all-encompassing rule might not encompass all inculpatory testimony

after all. It points out that counsel’s absence came during not just the testimony of

any old witness for the prosecution but during the testimony of the deputy sheriff

who was the government’s specialist expert witness. See Maj. Opn. at 26. But so

what? For purposes of the pretend prejudice rule what principled basis is there for

distinguishing one category or type of prosecution witness from another? Suppose

the deputy sheriff had not been testifying as an expert witness in the field of

computer forensics but for some other reason. Would that have mattered; if so,

why? Or suppose the government’s computer expert witness had not been a

deputy but instead had been an outside expert hired on a contract basis. Would

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that have mattered; if so, why? Or suppose the witness testifying while counsel

was out had been a non-law enforcement, non-expert witness who nonetheless

gave incriminating testimony against Roy. Would that have mattered; if so, why?

The point is that all, or virtually all, government witnesses give inculpatory

testimony against the defendant, which is why they are government witnesses.

There is no principled basis for distinguishing one from another. The majority’s

absolute, all-encompassing pretend prejudice rule either encompasses all witnesses

who give any inculpatory testimony or it encompasses none. It ought to be none.

The majority opinion and its ironclad, pretend-prejudice rule will as a

practical matter require district judges to closely monitor their courtrooms to

ensure that each attorney arrives on time in the morning, returns promptly after

every break, is at the bench during each discussion there, and doesn’t step out of

the courtroom for even a moment while testimony is being taken. Judges, like

kindergarten teachers, will be forced to keep an eye on their lawyer-children at all

times to prevent one from toddling away without being noticed. How this is to be

done, given everything else that is going on in a trial and competing for the judge’s

attention, the majority does not say. Maybe the requirement of perfect attendance

during every minute of the trial can be achieved by forcing each lawyer to wear an

ankle bracelet rigged to set off an alarm when he strays out of range from counsel

table. That might do the trick. Given all of the important duties a judge has during

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a trial, the majority creates a misguided rule that now requires a judge to keep an

eye on all of the attorneys at all times throughout a trial, under pain of automatic

reversal if one attorney momentarily steps away unnoticed.

There also is no reason why this “Roy rule” won’t apply to situations

where defense counsel’s constructive or actual absence is likely to go unnoticed by

the prosecution and the judge, such as where defense counsel dozes during trial or

in a large multi-defendant trial where counsel is actually absent. There is no

principled basis not to apply the rule of today’s decision to those two situations as

well. Why would the risk of prejudice, or the justification for pretending that there

was prejudice, be any less if Roy’s counsel had dozed off during those seven

minutes and, instead of being physically away from the courtroom, was away in

dreamland? Either way the attorney would not be conscious of what was being

said. All an attorney now has to do to get his client an automatic reversal of any

conviction is file an affidavit stating that he had inadvertently dozed off during two

or three minutes while a government witness was testifying against his client and

for that reason missed some of the testimony. Remember that under the majority’s

rule once an attorney’s absence, in this hypothetical a mental absence, is shown,

prejudice must be conclusively presumed and all of the defendant’s convictions

overturned. No questions may be asked of counsel. So trial judges will have the

duty not only to ensure that every defendant’s attorney is physically present during

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every minute of the trial but also that every attorney is wide awake and alert at all

times. The prudent judge may want to have each counsel table stocked with

caffeine tablets and energy drinks.6

Whatever measures a judge takes in response to today’s ruling, it will be

practically impossible to prevent presumptive prejudice error in a large, multi-

defendant, long-running trial. See Green, 809 F.2d at 1265 (Boggs, J. dissenting)

(“If a reversal is mandated whenever counsel (even retained) is absent from the

courtroom for any significant period, we make such an escape a sure ticket to a

new trial. In multi-defendant cases, judges will be required to keep a continual

head count . . . lest cagey counsel be able to invoke this new rule.”). After the

judge, jury, prosecutors, defense attorneys, and others have spent months in a

complex trial and verdicts of conviction have been returned, none of it will mean

anything for any defendant whose attorney can show that he was absent or dozed

off during any of the testimony from any of the many witnesses against his client.

That will be true even if the attorney missed only a few of the thousands of

questions and answers that directly or indirectly inculpated his client during the

6 Judges might also consider converting their bailiffs into something akin to Puritan Tithingmen. Those “ancient watchm[e]n of the congregation” had among their duties “disturb[ing] the slumbers of age” and seeing to it “that all persons were attentive” throughout seemingly interminable sermons. They carried a wooden rod tipped at one end with a squirrel’s tail used to awaken female congregants who dozed off. At the other end was a brass tip, or in some cases a deer’s hoof, “which carried sharp conviction to men and boys” who dared doze. Herbert B. Adams, Saxon Tithingmen in America 1 & n.1 (1883). 86 Case: 12-15093 Date Filed: 08/05/2014 Page: 87 of 101

long trial. It will not matter, as the majority insists it does not matter in this case,

whether the inculpatory testimony that the attorney missed was repeated in his

(conscious) presence. And it will not matter in the least why the attorney was

absent or whether the judge noticed the absence. That is the rule the majority

adopts.

The majority suggests that its no-exceptions, pretend-prejudice rule is

particularly warranted in this case because there was only a single defendant and a

single defense attorney for the court to monitor. See Maj. Opn. at 2, 28. But the

rationale for the Cronic rule, and the majority’s reason for applying it and

presuming prejudice in this case, has nothing to do with the number of defendants

or defense attorneys in a particular case. The Cronic opinion does not talk about

the ease of preventing an error but instead about the great likelihood of prejudice

from certain errors, such as the total deprivation of counsel from an entire stage of

the trial. See 466 U.S. at 658–60, 104 S.Ct. at 2046–47. Why would the risk of

prejudice, or the justification for presuming it, be any less if Roy had been tried

with eight or ten codefendants and the same inculpatory evidence had been

presented while his attorney was absent? There is no logical reason why the

likelihood that an attorney absence is overlooked, or the difficulty in guarding

against an absence and ensuring perfect attendance and perfect attention, would

change the prejudicial effect of an absence. If the prejudicial effect of a seven-

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minute absence must be conclusively presumed in this case involving a six-day

trial with one defendant, it must also be conclusively presumed when there is a

seven-minute absence during a six-month trial with a dozen defendants. The

presumption of prejudice that the majority has written into our circuit law logically

must apply in all trials or in none. It should be none.

The majority’s rule permits no inquiry into the reason or motivation behind

the absence, as its refusal to permit a remand for an evidentiary inquiry in this case

demonstrates. Even if a defense attorney deliberately steps out of the courtroom

for a minute or two for the purpose of putting in his pocket a get-out-of-jail-free

card for his client, he still gets to play that card. His absence trumps his client’s

conviction, which must be set aside, and no further questions may be asked

because nothing else matters. We must always pretend that prejudice exists.

Absence, whatever the reason or motive, equals reversal.

The majority tells us not to worry about an attorney deliberately missing a

few minutes of testimony to guarantee that any conviction of his client will be set

aside. See Maj. Opn. at 27. It could not possibly be a problem, we are told,

because lawyers are “officers of the Court bound by rules of professional

responsibility.” Maj. Opn. at 27. The majority believes that the threat of

disciplinary proceedings will prevent defense attorneys from taking advantage of

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today’s holding. That is not true, but “[i]sn’t it pretty to think so?”7 If lawyers

were angels, the majority’s belief that all lawyers are always ethical would make

sense, but if they were angels we would not need ethical rules and disciplinary

bodies. Lawyers are people and like all people they have flaws and failings and

sometimes behave improperly and unethically. The majority’s contrary theory

does not fit the world in which we live.

And the facts belie the majority’s theory. Lawyers practicing in our circuit

are regularly disciplined and even prosecuted for violating their ethical duties and

the law. The Florida Supreme Court enters hundreds of orders each year

disciplining attorneys for unethical conduct. 8 The Georgia Supreme Court enters

more than a hundred each year, 9 and the Alabama Supreme Court is not far

behind.10 In all, there were more than 600 disciplinary orders entered against

lawyers in the three states of our circuit during 2011, the last published reporting

7 Ernest Hemingway, The Sun Also Rises 247 (Macmillan Publ’g Co. 1987) (1926). 8 Florida attorneys were publically disciplined in 380 instances in 2011, 380 instances in 2012, and 233 instances in 2013. See Standing Comm. on Prof’l Discipline, ABA Ctr. for Prof’l Responsibility, 2011 Survey on Lawyer Discipline Systems (S.O.L.D.) (2013). The ABA has not yet published its S.O.L.D. reports for 2012 and 2013, and the figures for those years come from preliminary data submitted to the ABA by Florida’s disciplinary agency. 9 Georgia lawyers were disciplined in 177 instances in 2011, 149 instances in 2012, and 120 instances in 2013. See ABA, supra. Like the 2012 and 2013 statistics for Florida, Georgia’s figures for those two years come from preliminary data collected by the ABA. 10 Alabama lawyers were sanctioned in 82 instances in 2011. See ABA, supra. Alabama’s figures for 2012 and 2013 have not yet been reported to the ABA.

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year. 11 And those are counting only the cases where lawyers were caught and

formally disciplined.

The temptation to game the system and take advantage of the guaranteed

reversal that the Roy rule creates will be especially great in capital cases. Many

attorneys who represent capital defendants sincerely believe that the death penalty

is not only bad policy but is also immoral. They can literally save their client’s

life, or at least delay his death, by strategically slipping out of the courtroom for a

few minutes, or returning to it a little late, while the prosecution’s case against him

is being presented. And what about counsel representing a defendant who is a

member of a violent gang? His client may insist that counsel game the system with

a brief absence so that any conviction can be overturned under “the Roy rule.” The

client’s “request” may be one that counsel finds difficult to refuse.

The majority is confident that lawyers won’t place their licenses in jeopardy

by strategically taking advantage of today’s holding. That confidence is especially

unwarranted because there is so little chance that an attorney who does take

advantage of the “Roy rule” would ever suffer any consequences. If a trial judge

notices defense counsel leaving the courtroom in the middle of trial, the penalty for

that act is relatively small. See United States v. Fakhoury, 819 F.2d 1415, 1424

11 See supra nn.8–10.

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(7th Cir. 1987) (“[T]rial counsel was reprimanded by the district judge for leaving

the courtroom when the government was presenting its case . . . .”). If the trial

judge does not notice defense counsel’s brief absence and the issue is raised for the

first time on appeal, counsel can avoid ever having to account for his absence by

having a new attorney represent the defendant on appeal. Recall that in this case

trial counsel has never been held to account for his absence or even asked about it.

The majority sees no reason for inquiring into the absence because all that matters

to the majority is the fact that it occurred, not the reason it occurred. And even if

there were an inquiry, how would one ever prove that the reason an attorney was

out of the courtroom was his subjective intent to ensure a reversal of any

conviction?

And what about a “constructive” absence? If a defense attorney decides on

the 15th day of a trial that the proceeding is not going well for his client, what is to

stop him from closing his eyes for a minute or two during the examination of a

government witness, approaching the judge to claim that he was “sleeping” when

his eyes were closed, and then asserting that his client is entitled to a mistrial

because he was constructively absent during the presentation of inculpatory

evidence? How could the court know whether the attorney had in fact been

asleep?

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For all of these reasons, the majority’s reasoning is unpersuasive and the

“very narrow” presumed prejudice rule of Cronic should not be applied in this

case. See Stano, 921 F.2d at 1153 (quotation marks omitted).

IV. How We Should Decide This Case

Because any error involved in counsel’s momentary absence from the

courtroom was not Cronic error, it was at most trial error and trial errors are

subject to the normal rules of review. See Vines, 28 F.3d at 1128–29.

A. The Contemporaneous Objection Rule Furthers Important Interests of Our Criminal Justice System and Should Apply to Brief Attorney Absences from the Courtroom

The contemporaneous objection rule requires an objection in the trial court

before a defendant is entitled to plenary review on appeal. The rule “fosters

finality of judgment and deters sandbagging” by preventing a party from “saving

an issue for appeal in hopes of having another shot at trial if the first one misses.”

United States v. Rodriguez, 627 F.3d 1372, 1379 (11th Cir. 2010) (quotation marks

omitted). It also promotes “the salutary interest of making the trial the main event”

because “[f]ailure to enforce it tends to detract from the perception of the trial of a

criminal case . . . as a decisive and portentous event.” Id. (quotation marks omitted

and ellipsis in original). By requiring timely objections, we “allow[] trial courts to

develop a full record on [an] issue, consider the matter, and correct any error

before substantial judicial resources are wasted on appeal and then in an

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unnecessary retrial.” Id. (quotation marks omitted). Finally, the rule provides

substantial assistance for appellate review because “[a] full record and a prior

decision in the district court are essential ingredients to our substantive review of

issues.” Id. (quotation marks omitted). An objection allows for the “the record to

be made with respect to a constitutional claim when the recollections of witnesses

are freshest” and “enables the judge who observed the demeanor of those witnesses

to make the factual determinations necessary for properly deciding the federal

constitutional question.” Wainwright v. Sykes, 433 U.S. 72, 88, 97 S.Ct. 2497,

2507 (1977).

The Supreme Court has emphasized the importance of the contemporaneous

objection rule and the values it supports. As the Court wrote in Sykes:

[When a] defendant has been accused of a serious crime, [the trial] is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification.

Id. at 90, 97 S.Ct. at 2508.

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By not objecting when he returned to the courtroom to testimony having

been taken during his brief absence, Roy’s trial counsel deprived the district court

of an opportunity to address the problem on the spot, just after it occurred, and

while everyone’s recollection of the events were as fresh as they could be. If

counsel had objected, the attorneys and the judge could have decided what, if any,

action was appropriate to remedy the problem. One possibility is that the court

could have had the court reporter, outside the presence of the jury, read to counsel

the questions and answers he had missed, and then let counsel decide whether he

wanted some or all of them stricken and the jury instructed to disregard them. That

way, when those questions were asked again in his presence, counsel could object

to any of them for which there was any arguable basis for objection.

By requiring a timely objection, the contemporaneous objection rule

encourages remedies. Instead of fostering that laudatory policy, the majority’s

decision rewards counsel’s silence with an automatic reversal. It “encourage[s]

‘sandbagging’ on the part of defense lawyers.” See id. at 89, 97 S.Ct. at 2508. As

we have asked before, “[W]hat lawyer will not be ‘understandably reluctant’ to

object if no objection is required? By not objecting the lawyer can avoid any risk

that . . . an actual error [will be] corrected on the spot . . . .” Rodriguez, 627 F.3d

at 1380. By remaining silent, instead of objecting, under today’s holding defense

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attorneys can get “another shot at trial if the first one misses.” Id. at 1379

(quotation marks omitted).

B. Roy Has Failed to Show, or Even Assert, That His Counsel Was Unaware That Testimony Had Been Taken During His Brief Absence

If Roy’s attorney was unaware that testimony had been taken while he was

absent, his failure to object probably should be overlooked. But counsel must have

known, and Roy has never even suggested that counsel did not know.

Counsel knew that the judge had informed everyone before the lunch recess

that the trial would resume at 1:30 p.m., and he knew that he was walking in late.

When counsel walked into the courtroom, the jury was sitting in the box, Deputy

Longson was on the witness stand, and the prosecutor was asking the court for a

moment to approach defense counsel following Longson’s response to one of her

questions. Id. at 108. The prosecutor then approached and conferred with defense

counsel, and although the record does not tell us what they discussed, it seems

likely that they talked about the fact that defense counsel had missed some

testimony. See id. Under all of the circumstances, it is extremely doubtful that

Roy’s attorney did not know that the trial had recommenced without him. 12

12 Even if the scene confronting defense counsel when he returned to the courtroom had not signaled to him that the trial had continued in his absence, testimony from Deputy Longson soon after counsel’s return would have alerted him to that fact. With counsel back in the courtroom, Longson specifically testified that one of the photos was one he had “described earlier” showing “a white female who is bound to a table by her feet with a red and white ski 95 Case: 12-15093 Date Filed: 08/05/2014 Page: 96 of 101

Indeed, Roy has not even suggested that his attorney was unaware that he had

missed some of Longson’s direct examination.

Because Roy’s counsel failed to object to the error, our review should be for

plain error only. See United States v. Williams, 527 F.3d 1235, 1239 (11th Cir.

2008). The majority’s claim that we should not review the error that occurred at

Roy’s trial under the plain error standard is wrong because it relies on the faulty

premise that a Cronic error occurred in this case. See Maj. Opn. at 21–22. None

of the opinions that the majority relies on supports its position. First, the majority

relies on Justice Souter’s dissent in Mickens v. Taylor, 535 U.S. 162, 204, 122

S.Ct. 1237, 1261 (2002) (Souter, J., dissenting), which was just that, a dissenting

opinion, not an opinion of the Court. The dissenting opinion asserted that a court’s

error should not be excused simply because an attorney failed to object, but that

extreme position would apply to all judicial errors, thereby abolishing the

contemporaneous objection rule. Such a proposal is untenable and goes against the

settled law that defendants must object even to judicially created errors in order to

properly preserve them for full review on appeal. See, e.g., United States v.

Davila, 749 F.3d 982, 993–94, 998–99 (11th Cir. 2014) (applying plain error

review where defendant failed to object to magistrate judge’s “emphatic and highly

rope.” The record shows that the only time that photo had been described earlier was during the part of Longson’s testimony that occurred while counsel was out of the courtroom.

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improper” remarks “regarding the desirability of a guilty plea”). The majority also

relies on Wood v. Georgia, 450 U.S. 261, 265 n.5, 101 S.Ct. 1097, 1100 n.5

(1981), but in that case the Supreme Court did not directly address an issue that

had not been properly preserved in the trial court. Instead, it remanded the case for

consideration of a possible due process violation that was apparent from the facts

of the case but had not been raised on appeal or in the defendant’s petition for

certiorari. Id. at 264–65, 101 S.Ct. at 1100. The Supreme Court chose that

approach only for prudential reasons because it wanted to avoid deciding a novel

constitutional question that had been raised on appeal. Id. at 265, 101 S.Ct. at

1100. Finally, the majority relies on our decision in Harding v. Davis, 878 F.2d

1341 (11th Cir. 1989), but unlike this case, Harding involved actual Cronic error.

In that case, as a result of a disagreement with his client, defense counsel

“remained silent through virtually the entire trial, except for various remarks

indicating that [the defendant] did not desire his assistance.” Id. at 1343. As a

result, it was as though Harding had no counsel at all because his attorney

completely failed to subject the prosecution’s case to any meaningful adversarial

testing at all, an obvious Cronic violation. See Cronic, 466 U.S. at 659, 104 S.Ct.

at 2047. None of those opinions supports the majority’s assertion that plain error

review is inappropriate in this case.

C. Roy Cannot Prevail on Plain Error Review

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Under plain error review, Roy has the burden of establishing that “(1) an

error occurred; (2) the error was plain; (3) it affected [his] substantial rights; and

(4) it seriously affected the fairness of the judicial proceedings.” Rodriguez, 627

F.3d at 1380 (quotation marks omitted). We need not look beyond the third

requirement to decide that Roy has not established plain error. To show that an

error affected a defendant’s substantial rights for plain error purposes, a defendant

has the burden of proving “a reasonable probability of a different result” but for the

error. Id. at 1382 (quotation marks omitted). If we cannot tell whether an

unobjected to error prejudiced a defendant, the defendant loses. United States v.

Rodriguez, 398 F.3d 1291, 1299–1300 (11th Cir. 2005) (holding that where it is

uncertain whether prejudice exists, the defendant loses).

Roy has not come close to establishing a reasonable probability of a

different result but for his counsel’s absence during seven minutes of testimony,

less than one-half of one percent of the trial. In fact, the record overwhelmingly

establishes that the brief absence cannot have affected the jury’s verdict on Count

1. See supra pp. 56–58. Nor could it have affected the jury verdict on Counts 2 –

5. See supra pp. 59–60. There is no reasonable probability of a different result but

for the error, which the majority implicitly recognizes by insisting that we apply

Cronic and pretend that there was prejudice.

D. Roy Could Not Prevail Even Under Plenary Review

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Even if we ignore the failure to object, Roy’s convictions should still be

affirmed under plenary review because of the harmless error rule.

Contrary to the majority’s argument, Maj. Opn. at 17–23, harmless error

analysis is not inappropriate, much less impossible, to apply to brief absences of

counsel from trial. (And the standard is not whether the error was de minimis, see

Maj. Opn. at 26, but whether it was harmless. It is the harmless error rule, not the

de minimis error rule.)

As the Supreme Court has held, application of the harmless error doctrine

“promotes public respect for the criminal process by focusing on the underlying

fairness of the trial.” Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 1838

(1999) (quotation marks omitted). When a constitutional violation occurs in a

criminal trial, harmless error analysis is the norm, not the exception. See, e.g.,

Fulminante, 499 U.S. at 306, 111 S.Ct. at 1263 (“Since this Court’s landmark

decision in Chapman v. California, in which we adopted the general rule that a

constitutional error does not automatically require reversal of a conviction, the

Court has applied harmless-error analysis to a wide range of errors and has

recognized that most constitutional errors can be harmless.”) (citation omitted)

(emphasis added); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106 (1986)

(“[I]f the defendant had counsel and was tried by an impartial adjudicator, there is

a strong presumption that any other errors that may have occurred are subject to

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harmless-error analysis. The thrust of the many constitutional rules governing the

conduct of criminal trials is to ensure that those trials lead to fair and correct

judgments. Where a reviewing court can find that the record developed at trial

establishes guilt beyond a reasonable doubt, the interest in fairness has been

satisfied and the judgment should be affirmed.”). The majority’s contrary position

flies in the face of the Supreme Court’s teaching in Fulminante, Chapman, Rose,

and a host of other decisions. See also Vines, 28 F.3d at 1128 (applying harmless

error review after concluding “that the temporary absence of a defendant’s trial

counsel during a portion of the actual trial does not necessarily affect the conduct

of the entire trial”).

The rule the majority adopts today, and its reversal of Roy’s well-deserved

convictions without regard to whether the error affected the outcome of the trial,

smacks of a “sporting theory of justice.” See United States v. Agurs, 427 U.S. 97,

108, 96 S.Ct. 2392, 2400 (1976) (quotation marks omitted). It will undermine

fairness in the administration of justice by inviting reversals that have nothing to

do with the merits of a case. As the Supreme Court has repeatedly emphasized,

“Reversal for error, regardless of its effect on the judgment, encourages litigants to

abuse the judicial process and bestirs the public to ridicule it.” Rose, 478 U.S. at

579, 106 S.Ct. at 3106 (quotation marks omitted); accord Neder, 527 U.S. at 18,

119 S.Ct. at 1838; Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544,

100 Case: 12-15093 Date Filed: 08/05/2014 Page: 101 of 101

1550 (1997); see also Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436 (“As we

have stressed on more than one occasion, the Constitution entitles a criminal

defendant to a fair trial, not a perfect one.”); Snyder v. Massachusetts, 291 U.S. 97,

122, 54 S.Ct. 330, 338 (1934) (“[J]ustice, though due to the accused, is due to the

accuser also. The concept of fairness must not be strained till it is narrowed to a

filament. We are to keep the balance true.”).

The public loses confidence in the judicial process when reliable convictions

are reversed on technical errors that did not affect the result. See United States v.

Keys, 95 F.3d 874, 883 (9th Cir. 1996) (Kleinfeld, J., dissenting) (“What really

hurts the reputation of judicial proceedings is vacating a criminal conviction

because of what laymen properly call a technicality, that is, a technical defect

which made no practical difference in the particular case.”) (quotation marks

omitted), vacated, 520 U.S. 1226, 117 S.Ct. 1816 (1997). Any rule that requires us

as judges to decide a case by pretending that something exists, when we as men

and women know that it does not, risks undermining the public’s confidence in the

administration of justice. That is another reason the majority’s “Roy rule” is

wrong.