United States v. Alexander Michael Roy

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 26, 2017
• Docket: 12-15093
• Status: Published

Opinion

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[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 ________________________

(April 26, 2017)

ON PETITION FOR REHEARING

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. Case: 12-15093 Date Filed: 04/26/2017 Page: 2 of 281

ED CARNES, Chief Judge:

Because it is a document designed to govern imperfect people, the

Constitution does not demand perfect trials and errors do not necessarily require

the reversal of a conviction. More than thirty years ago, the Supreme Court

reminded us: “As we have stressed on more than one occasion, the Constitution

entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986). Alexander Roy, who

was convicted in federal court of five sex-related crimes involving minors,

received a fair trial although not a perfect one.

The error in Roy’s trial occurred when his counsel returned a few minutes

late from a lunch break on the third day of the six-day trial. He missed only a

small part of the testimony of the 12th of 13 government witnesses. Counsel was

out of the courtroom for only seven minutes of a trial that lasted 1,884 minutes or

31.4 hours (not counting recesses and jury deliberations). That is 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. That is less than one percent of the total

testimony against Roy. And the little testimony that counsel had missed was

repeated in even more detail by the same witness after counsel returned to the

courtroom.

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The parties agree that it was Sixth Amendment error for inculpatory

testimony to be taken in the absence of defense counsel. Their primary

disagreement is about whether it was a type of structural error for which prejudice

is presumed, or trial error to which the harmless error rule applies. They also

disagree about whether our review is limited to plain error and about whether the

error was actually harmless.

I. The Charged Crimes

Roy was charged in a five-count indictment with sex crimes related to minor

girls. Count 1 charged him with attempted child enticement in violation of 18

U.S.C. § 2422(b), based on his efforts to arrange a sexual encounter with someone

he believed to be a 13-year-old girl in response to an internet ad posted by law

enforcement. That charge did not involve any child pornography. And no

questions about the Count 1 charge were asked during counsel’s brief absence.

None.

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

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

pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (emphasis added).

The difference between those four counts is based on the four different electronic

devices Roy used to store his images of child pornography: his desktop computer

(Count 2); his laptop computer (Count 3); his USB thumb drive (Count 4); and

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three of his CD-ROM discs (Count 5). All that the government had to prove under

each of Counts 2–5 was that Roy knowingly possessed one or more images of

child pornography on the electronic device specified in that count. It could be the

same image or images on each device or different images, so long as there was at

least one on each device. As we will discuss in more detail in the next part, the

evidence proved without dispute that there were multiple still images and video

images of child pornography involving a number of different minors on each of

Roy’s four electronic devices. Roy had a sexual relationship with one of the

minors, and he had produced the pornographic still and video images of that child,

some of which were contained on all four devices. Each of the four devices also

contained other child pornography, involving different minors, that Roy had

downloaded from the internet.

II. The Evidence

For analytical ease we break the testimony and evidence presented during

the trial down into three categories: that presented before counsel’s brief absence

from the trial, that presented during his absence, and that presented after he

returned.

A. Before Counsel’s Absence

During the first two days of Roy’s six-day trial, with defense counsel present

at all times, the government called 10 witnesses whose testimony focused on the

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attempted child enticement charge in Count 1. Their unrefuted testimony showed

that Roy, a middle school teacher, set up 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 the mother and child so that he could have sex with the child. Their

testimony also showed that he went to the illicit rendezvous with condoms and a

bottle of Astroglide 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 the crime that was charged in Count 1. He did not

miss any of it on any day. On the third day of trial, before the lunch break and in

counsel’s presence, there was 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 on that third morning, however, went to Counts 2–5

and concerned Roy’s sexual relationship with L.B., the girl in the pornographic

images and videos that Roy himself had produced and stored, along with child

pornography from the internet, on his four electronic devices specified in those

four counts. That same morning, with defense counsel present, William Kulp, an

agent of the Florida Department of Law Enforcement, testified without objection

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

produced before May 9, 2007 is child pornography. See 18 U.S.C. § 2256(1)

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(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 objection. The

principal’s testimony and those yearbook exhibits enabled the jury to compare how

L.B. looked at various ages during her school years with how she looked in the

pornography that Roy had produced.

The third and final government 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 examines a computer. He also testified about the user and

email/messenger accounts that he had found on Roy’s desktop computer. That

testimony was used, among other things, to put into evidence Roy’s email

messages setting up his sexual liaison with the (fictitious) 13-year-old and the

sexually oriented instant messenger conversations between Roy and (the real) L.B.

that were on his computer. Longson’s testimony was interrupted by a lunch break.

B. During Counsel’s Absence

Defense counsel returned late from the lunch break on the third day of trial

and missed seven minutes of Deputy Longson’s continuing testimony. During the

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

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

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images of child pornography, and all six of those images were of a single female

subject. Those particular images of the young female were found in only one of

the several file folders containing child pornography that were on Roy’s desktop

computer. That folder, when discovered by Longson on Roy’s desktop computer

had been labeled “2006-03-11.” On that date, L.B. indisputably would have been

16 years old.

Longson testified that those six images showed “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 the

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. During the seven minutes

while defense counsel was out of the courtroom, no exhibits were admitted into

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

images.

C. After Counsel Returned

Soon after counsel returned to the courtroom, the testimony that Longson

had given during counsel’s brief absence was repeated.1 And it was only after

1 There is only one difference. In his testimony while defense counsel was absent, Longson said that the photographic images of the young female were taken on March 10, 2005; in his

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counsel returned that Longson identified L.B. as the young female in the six

images of pornography found on the desktop computer that he had been testifying

about.

This is how those events unfolded. After defense counsel entered the

courtroom, the prosecutor asked the court for permission to speak with him, which

the court granted. There was then a pause in the proceedings, and after the

prosecutor and defense counsel had an opportunity to speak, the prosecutor

approached witness Longson with 10 exhibits: the six pornographic images of

L.B. that Longson had found in the “2006-03-11” folder on Roy’s desktop

computer; three other pornographic images of L.B. from a different folder on that

computer, which was titled “2006-12-04”; 2 and a “contact sheet” generated by the

camera showing still images from a pornographic video of L.B., also recovered

from that second folder. See also infra n.3.

testimony after counsel returned, he said that they were taken on March 11, 2006. Regardless of whether the photographic images were taken in March 2005 (when L.B. would have been 15 years old) or March 2006 (when L.B. would have been 16 years old), she was a minor at the time. She did not turn 18 until May 9, 2007. See infra at 5–6. 2 In one place the transcript identifies this folder as “2006-02-04,” but the immediately following question on that same page (“So December 4th, 2006?”) and the other references to the folder name indicate that this was a transcription error and the folder was actually called “2006- 12-04.” For that reason, we are referring to it that way in this opinion. The difference, in any event, is immaterial.

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With counsel present Longson then described in detail what each of those

images depicted, and he also testified that the six images from the “2006-03-11”

folder had been created on March 11, 2006, and uploaded onto Roy’s desktop

computer (which Roy had acquired later) on April 4, 2009. Those six 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.” During that and all the other

testimony that would follow counsel was there.

He was present when Longson first described the other three pornographic

images of L.B. found on Roy’s desktop computer in the “2006-12-04” folder.

Those images showed L.B. lying naked in a bathtub, and written in “black ink both

on [her] chest between the breasts and then on [her] stomach over the nav[e]l”

were the words “Alex’s Little Cunt.” (Roy’s first name, of course, is Alexander,

and his roommate and L.B. both called him “Alex.”) Longson testified that those

particular pornographic images were taken on December 2, 2006. On that date,

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.

At that point in the trial, Deputy Longson described for the first time the

contact sheet taken from the “2006-12-04” folder showing nine images from the

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pornographic video of L.B. 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, which is the model of camera recovered

from Roy’s home during the police search.

At the times all of those images of L.B. — the six in the “2006-03-11” folder

and the three plus the contact sheet from the “2006-12-04” folder — were created,

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

10 exhibits consisting of those images were admitted into evidence without

objection. Being present during all of the testimony we have just recounted, Roy’s

trial counsel had an opportunity to object to the testimony or to admission of the

exhibits into evidence, if there were any basis for doing so. He did not object to

any of it.

In the presence of defense counsel, Longson also testified about finding on

Roy’s desktop, laptop, thumb drives, and CD-ROM discs numerous pornographic

videos of L.B. that had been made between October and December 2006 using a

Kodak v530 Zoom Digital Camera. It was undisputed that L.B. would have been

17 years old, and therefore a minor, during all of 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”

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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 did not object to any of it.

Deputy Longson’s testimony in defense counsel’s presence about the child

pornography that he found on Roy’s desktop, laptop, USB drive, and CD-ROM

discs was not limited to all of the images and videos of L.B. He also testified

about finding in temporary internet files on Roy’s desktop computer several

images of downloaded child pornography involving minors other than L.B., which

is a subject that had not been mentioned at all during counsel’s brief absence from

the courtroom. With counsel present, Longson described how one of those images

of other minors showed “two or three subjects under the age of 18 engaged in

sexual activity with two men.” He also described finding on Roy’s laptop a folder

labeled “Girls,” which contained pornographic images of other minors and files

named “kingpouge_14,” “vica16,” and “svet_16.” Longson testified that he had

found five images of child pornography featuring minors other than L.B. on Roy’s

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USB thumb drive. And he testified that he had found on Roy’s CD-ROM discs

multiple pornographic images of minors other than L.B., which were copies of

images on Roy’s other devices.

All of those were pornographic images of minors other than L.B., and all of

them were admitted into evidence. Although he was present during all of that

testimony, defense counsel did not object to any of it. Any one of those

pornographic images of minors other than L.B. was enough by itself to prove the

crime of possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B), (b)(2), which is the crime charged in Counts 2–5 of the

indictment.

Once the prosecution completed its direct examination of Longson, defense

counsel cross-examined him over the course of 45 pages of the trial transcript. He

attempted to challenge Longson’s testimony that the images 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 images and videos of L.B.

showed that they had been taken on a date when L.B. was a minor. Defense

counsel did not even attempt during cross-examination or at any other time to

challenge Longson’s testimony about the pornographic images involving minors

other than L.B.

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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

pornographic 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, in his opinion 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 he had described were not

necessarily present in all Kodak v530 cameras, and he conceded that Roy’s camera

might not have had any battery issues anyway. He admitted that the dates applied

by a user to the computer folders in which the L.B. images were stored (i.e.,

“2006-03-11,” “2006-10-13,” and “2006-12-04”) were all consistent with the

creation dates that the camera had automatically embedded in those images

themselves. Moody also admitted that the images and videos were numbered

sequentially and none of them showed any signs of having reverted back to an

earlier date.

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III. The Facts Concerning Counsel’s Brief Absence

We know only these facts about counsel’s absence. On the third day of trial

during the testimony of Deputy Longson, who was the 12th of 13 government

witnesses, the judge announced the lunch break: “Okay. So let’s go ahead and

break for lunch and ask you to be back at 1:30.” The jury left the courtroom at

12:33. The next thing in the transcript is this parenthetical notation by the court

reporter: “(Court recessed at 12:34 p.m., and proceedings continued, without the

presence of defense counsel, at 1:29 p.m.).”

The testimony of Deputy Longson resumed at 1:29 p.m. and continued for

two-and-a-half transcript pages, consisting of 18 questions and answers, after

which the following occurred:

[AUSA]: Your Honor, may I have a moment while I approach Counsel? (Defense counsel entered the courtroom at 1:36 p.m.) (Pause.) [AUSA]: Thank you, Your Honor. May I approach, Your Honor? The Court: All right. [AUSA]: I’m showing the witness Government’s Exhibits 73-01 through 73-10. 3

3 Exhibits 73-01 through 73-06 are the pornographic still images of L.B. from the “2006-03- 11” folder that was found on Roy’s desktop computer. Exhibits 73-07 through 73-09 are the still pornographic images of L.B. that were found in the “2006-12-04” folder on Roy’s desktop computer. And Exhibit 73-10 is the “contact sheet” showing several still images from the pornographic video of L.B. in that same folder.

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To recap, after lunch the trial resumed one minute earlier than it had been

scheduled to, and defense counsel returned six minutes later than the time he had

been instructed to be there. As a result, he missed seven minutes of a trial that

lasted a total of 1,884 minutes or 31.4 hours (not counting recesses and jury

deliberations), which means he was present during 99.6 percent of the trial.

Counsel missed hearing only 18 answers given by one of the 13 government

witnesses against him, who collectively gave a total of approximately 2,745

answers. Even if we consider only the testimony of Deputy Longson, the witness

who was on the stand when he returned late, counsel missed only three of the 175

pages of Longson’s total testimony (which consisted of 111 pages of direct

examination, 45 pages of counsel’s cross-examination, and 19 pages of redirect

examination). We know that from the record.

We do not know why counsel returned late from lunch. We also do not

know if he realized when he walked in late that some testimony had been taken in

his absence, either because he heard testimony being given, or he saw that there

was a witness on the stand and the AUSA was up, or because his client who had

been present told him what had happened. And we do not know if either the

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AUSA or the judge realized that defense counsel was absent when the trial

resumed after lunch.4

One thing that we do know is that neither party wants us to take the

necessary steps to find out any of those facts. Both sides insist that instead of

remanding for an evidentiary hearing to determine all of the other facts about

counsel’s brief absence, including who knew what and when, we should decide the

appeal solely on the basis of the facts that are already in the record. 5 We will. 6

4 If we were required to decide whether the judge realized that defense counsel was not present when he resumed the trial after the lunch break, we would take into account the fact that the judge had previously stated he would not start court after a recess without the lawyers being present. This is what the judge had told the jury before the recess at the end of the first day of trial: We will get started Monday at 9:00 o’clock. So if you are unfamiliar with coming into the Fort Pierce area that time of day, I ask that you give yourself a few extra moments and get here before 9:00 o’clock, 8:45, 8:50 or so, so we can get started on time. If we are missing just one of us, you, me, the lawyers, we can’t get started. So in order to keep the case on track time-wise and [as a] courtesy to your fellow jurors, I would ask that you be here sometime before 9:00 o’clock so we can get started promptly at 9:00. (Emphasis added.) 5 The following exchange during oral argument between a judge of this Court and Roy’s appellate counsel conveys Roy’s position on the remand question: Marcus, J.: . . . . I want to follow up on Judge Wilson’s question. He asked you whether a remand is necessary if there’s a Cronic violation. Your answer was no, because the record is complete. Mr. Rashkind: Correct. Marcus, J.: Let me ask the converse question. It would be equally true that a remand would be unnecessary even if harmless error applied, right? Mr. Rashkind: I think that’s probably true. Yes, sir. Marcus, J.: Okay. So there’s no reason for a remand no matter how we come at the question.

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IV. An Assumption to Simplify the Analysis And Focus on the Harmless Error Issue

The government argues that we should review only for plain error and that

there isn’t any. See United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005)

(“We have discretion to correct an error under the plain error standard where (1) an

error occurred, (2) the error was plain, (3) the error affected substantial rights, and

(4) the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.”). Absent any knowledge of why defense counsel was absent,

whether the AUSA or judge realized he was not present, about what counsel

realized or didn’t when he walked in late, and about whether he took some

ameliorative action not reflected in the transcript, we will not apply the plain error

rule or remand for any findings necessary to decide if it is applicable. Instead, in

order to simplify our analysis, we will indulge the assumption that the plain error

Mr. Rashkind: I don’t — I think you’re right. The government’s position was essentially the same. 6 The lead dissent has difficulty confining itself to the facts in the record, as the parties agree that we should. It almost does, but just five sentences from the end of its opinion, the dissent says: “When a district court allows substantive, inculpatory evidence against a criminal defendant in the absence of any counsel and in the presence of the jury . . . .” Dissenting Op. at 265. The problem with “allows” is that it implies the district court noticed defense counsel was absent and went on. There is nothing in the record to indicate that the district court did that. Instead, as we have pointed out, the indication is that the court did not notice counsel was absent, although we make no assumption either way. See supra n.4.

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rule does not apply even though there was no contemporaneous objection. We can

indulge that assumption because even with it the result is the same.

Given that scope of review, we do agree with Roy that absent evidence of an

attempt to deliberately inject error into the record and without a waiver from the

defendant, it is a violation of the Sixth Amendment for inculpatory testimony to be

taken from a government witness without the presence of at least one of the

defendant’s counsel, regardless of whether the judge or the AUSA noticed that

counsel was not there. We do not, however, agree with Roy that prejudice is

presumed and reversal is automatic. Instead, for the reasons that follow we hold

that the harmless error rule is applicable to this brief absence of counsel from the

courtroom, and that the absence was harmless beyond a reasonable doubt in this

case.

V. Analysis: Why the Harmless Error Rule Applies and the Rare Exceptions to It Do Not

Given our assumptions in Roy’s favor, the outcome turns on whether the

error in this case, like most constitutional errors, is one to which the harmless error

rule applies or instead is one of those rare cases where the presumption of

prejudice applies.7 If counsel’s brief absence is a type of structural error, we

7 This case does not involve one of those more common Sixth Amendment claims alleging that counsel’s performance was outside the wide range of reasonable professional assistance and that it prejudiced the defendant, with prejudice being defined as a reasonable probability of a

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presume prejudice and there will be no room for the application of the harmless

error rule. If it is not structural error, and no other rare exception requiring that

prejudice be presumed fits, the harmless error rule applies. And, as we will explain

later, the error was harmless beyond a reasonable doubt. See infra Part VI.

A. The Importance of the Harmless Error Rule and How Pervasively It Applies

The harmless error rule serves vital interests, chief of which is conserving

scarce judicial resources by avoiding pointless retrials. Applying the rule to

determine whether error, including constitutional error, affected the result of a trial

is also essential to avoid a “sporting theory of justice” and a regime of gotcha

review. See United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2400 (1976)

(quotation marks omitted).

“Reversal for error, regardless of its effect on the judgment, encourages

litigants to abuse the judicial process and bestirs the public to ridicule it.” Van

Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436 (quotation marks omitted). The

different result but for counsel’s deficient performance. See Strickland v. Washington, 466 U.S. 668, 689–90, 694–95, 104 S. Ct. 2052, 2065–66, 2068 (1984). That type of attorney error issue is the stuff of Strickland v. Washington and the tens of thousands of decisions that have cited, discussed, and applied that progenitor of modern ineffective assistance law. Given the limited knowledge we have about the circumstances involving the absence of Roy’s counsel and what, if anything, he realized when he returned to the courtroom, and given the assumptions we have made, see supra Part IV, we are not treating this as an attorney error case. See Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994) (“Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context.”). Nor do the parties treat it as one.

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Supreme Court has explained that the harmless error rule “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); see also Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544,

1550 (1997) (reviewing only for plain error a violation of the Sixth Amendment

right to jury trial and deciding that “there is no basis for concluding that the error

seriously affected the fairness, integrity or public reputation of judicial

proceedings. Indeed, it would be the reversal of a conviction such as this which

would have that effect.”) (quotation marks and alterations omitted); see also 28

U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari in any case, the

court shall give judgment after an examination of the record without regard to

errors or defects which do not affect the substantial rights of the parties.”);

Shinseki v. Sanders, 556 U.S. 396, 407–08, 129 S. Ct. 1696, 1705 (2009)

(construing § 2111 “as expressing a congressional preference for determining

‘harmless error’ without the use of presumptions insofar as those presumptions

may lead courts to find an error harmful, when, in fact, in the particular case before

the court, it is not”).

We are, after all, talking about “the harmless error rule,” not “the harmless

error exception.” Because errorless trials are not expected, much less required,

harmless error analysis is the rule, not the exception. How broadly the rule applies

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is evident from the Supreme Court’s observation that: “Since this Court’s

landmark decision in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (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.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263

(1991) (emphasis added). The Court drove home that point by listing in the

Fulminante opinion 16 different constitutional violations that it had held are

subject to the harmless error rule. And the decision in Fulminante became a 17th

example by holding that admission of a coerced confession is another error that can

and should be reviewed for harmlessness. Id. at 306–09, 111 S. Ct. at 1263–64.

See infra at 76–78.

The dissenting opinion seeks to sweep away the important point that the

Supreme Court made in Fulminante when it listed 16 constitutional errors (plus the

one in that case itself) that have been held to be subject to harmless error analysis

instead of a presumption of prejudice.8 See infra at 76–77. The dissent would

replace the Supreme Court’s instruction in Fulminante about the breadth of the

harmless error rule with an alternative message that only “unimportant and

8 There are three dissenting opinions. All of our references to “the dissent” and “the dissenting opinion” are to the principal dissenting opinion, which was authored by Judge Wilson and joined by Judge Martin.

21 Case: 12-15093 Date Filed: 04/26/2017 Page: 22 of 281

insignificant” constitutional errors are subject to harmless error review under

Chapman. See Dissenting Op. at 221. But under Chapman constitutional errors

are not to be classified by the importance or significance of the constitutional right

that was violated but by the effect of the violation “in the setting of a particular

case.” See Chapman, 386 U.S. at 22, 87 S. Ct. at 827. That is why, as the Court’s

Fulminante list shows, the harmless error rule has been applied to all types of

constitutional errors, including: defects of every sort in jury instructions;

restrictions on the right to cross-examine adverse witnesses; improper comments

on the right to remain silent at trial; violation of the right of the defendant to be

present at trial; admission of a coerced confession; admission of evidence in

violation of the right to counsel; and denial of counsel at a preliminary hearing.

See infra at 76–77. Those violations do not involve “unimportant and

insignificant” constitutional rights, but the Court has applied the harmless error

rule to them nonetheless.

B. The Cronic Exception

For virtually every rule of law, however, there is an exception or two,

sometimes more. One of those exceptions at issue in this appeal is the Cronic

exception, which provides that prejudice is to be presumed, and therefore the

harmless error rule does not apply, when a criminal defendant has been completely

denied the right to counsel for a critical stage of the trial, which is an error that

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contaminates the entire proceeding. See United States v. Cronic, 466 U.S. 648,

659 & n.25, 104 S. Ct. 2039, 2047 & n.25 (1984). When an error of that

magnitude happens, we do not ask whether the error was harmless; we irrebutably

presume that it was harmful. See id.; see also Bell v. Cone, 535 U.S. 685, 695–96,

122 S. Ct. 1843, 1850–51 (2002) (noting that Cronic “identified three situations

implicating the right to counsel” in which prejudice to the defense could be

presumed). Roy’s primary contention is that his counsel’s brief absence from the

courtroom is Cronic error. It is not.

The Cronic decision limited the presumption of prejudice to cases where

defense counsel “entirely fails to subject the prosecution’s case to meaningful

adversarial testing” in the trial or where there is “the complete denial of counsel” at

a “critical stage of [the] trial.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047

(emphasis added). Roy has never contended, and could not contend, that his

counsel entirely failed to subject the prosecution’s case to meaningful testing.

Defense counsel was present during 99.6 percent of Roy’s trial, and he vigorously

represented Roy. Among other things, he cross-examined nine of the

government’s 13 witnesses, including Deputy Longson whom he cross-examined

for 45 pages of the trial transcript. Counsel also called his own competing expert

witness in an attempt to rebut Longson’s testimony. And he gave a vigorous

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closing argument. In sum, Roy’s counsel did “subject the prosecution’s case to

meaningful adversarial testing.” Id.

Instead of questioning the effectiveness of his representation, Roy contends

his case falls within the Cronic exception because his counsel’s brief absence

during one small part of the testimony of one of the 13 government witnesses

against him amounts to denial of counsel during a critical stage of the trial. We

turn now to the critical stage requirement that must be met before an error will be

found to fit within the Cronic exception to the prejudice requirement and the

harmless error rule. See id.

The last time that we sat en banc in a case involving a Cronic issue, we

emphasized that the exception applied “to only a very narrow spectrum of cases”

where “the defendant was in effect denied any meaningful assistance at all.” Stano

v. Dugger, 921 F.2d 1125, 1153 (11th Cir. 1991) (en banc) (emphasis added)

(quotation marks omitted); see United States v. Kaid, 502 F.3d 43, 46 (2d Cir.

2007) (expressing “reluctance to extend a rule of per se prejudice in any new

direction”) (quotation marks omitted). And we emphasized that the burden of

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

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

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

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repeatedly refused to find it applicable. 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 make any final

argument during the penalty phase of a capital trial. Bell, 535 U.S. at 692–98, 122

S. Ct. at 1849–52. And the Court has held that the Cronic exception 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 as

part of his strategy to avoid a death sentence. Florida v. Nixon, 543 U.S. 175, 178,

190–92, 125 S. Ct. 551, 555, 562–63 (2004). Only once in the 30 years since the

Cronic decision was issued has the Supreme Court applied Cronic to presume

prejudice. See Penson v. Ohio, 488 U.S. 75, 88, 109 S. Ct. 346, 354 (1988)

(holding that “the presumption of prejudice must extend as well to the denial of

counsel on appeal” when the granting of an attorney’s motion to withdraw had left

the petitioner “entirely without the assistance of counsel on appeal”). The scope of

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

Even in Cronic itself the Court did not find that the Cronic exception to the

harmless error rule applied. That case involved a woefully inexperienced, young

attorney who had been appointed to serve as counsel less than a month before trial

in a complex mail fraud case, a case that the government had investigated for over

four-and-a-half years during which it had reviewed thousands of documents.

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Cronic, 466 U.S. at 649, 104 S. Ct. at 2041. Despite those extreme facts, the

Supreme Court refused to presume prejudice, requiring instead that the defendant

show that he actually was prejudiced. Id. at 662–66, 104 S. Ct. at 2049–50. The

Court remanded the case for the court of appeals to determine whether the

defendant could establish deficient performance and prejudice, as required by

Strickland v. Washington. Id. at 666–67, 104 S. Ct. at 2051.

The Supreme Court’s insistence on confining the Cronic exception within

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

Court reversed the decisions of lower courts that had held the exception applied

and 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.

One way that the Supreme Court has ensured that the Cronic exception will

remain rare, the scope of the decision will be narrow, and the burden of

establishing the exception will be heavy is by requiring that there be a complete

denial or total failure of counsel, if not at trial generally, at least at a critical stage

of the prosecution. See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (“The

presumption that counsel’s assistance is essential requires us to conclude that a

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

also Bell, 535 U.S. at 697, 122 S. Ct. at 1851 (noting that counsel’s failure to test

the prosecution’s case “at specific points” does not rise to the level of Cronic

error).

In the Cronic opinion itself, the Court’s examples of a critical stage include

Hamilton v. Alabama, 368 U.S. 52, 54–55, 82 S. Ct. 157, 159 (1961), where

prejudice was presumed when the defendant was entirely denied any counsel

throughout all of his arraignment, and White v. Maryland, 373 U.S. 59, 59–60, 83

S. Ct. 1050, 1051 (1963), where prejudice was presumed after the defendant was

entirely denied counsel throughout all of his preliminary hearing. See Cronic, 466

U.S. at 659 n.25, 104 S. Ct. at 2047 n.25; see also Strickland v. Washington, 466

U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984) (“Actual or constructive denial of the

assistance of counsel altogether is legally presumed to result in prejudice.”)

(emphasis added).

Roy’s position depends on his proposition that what took place during the

seven minutes when his counsel was out of the courtroom is unto itself a critical

stage of the trial. If the 18 answers that counsel missed hearing from one

government witness, out of a total of 2,745 answers from 13 government witnesses

during the trial, do not by themselves constitute a separate stage of the trial, Roy’s

Cronic argument fails. So Roy argues, as he must, that what occurred during those

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seven minutes must be considered by itself to be “a critical stage of his trial.”

Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. 9

What, then, is a “critical stage” of a trial? We, like the Sixth Circuit, “would

welcome a comprehensive and final one-line definition of ‘critical stage’” for the

purposes of determining whether error is Cronic error. Van v. Jones, 475 F.3d 292,

312 (6th Cir. 2007). None exists, as that court recognized. Id. We do not,

however, need a comprehensive or pithy definition of the term to conclude that the

brief period during which Roy’s counsel was absent from the courtroom is not

itself a critical stage of the trial. If we held that seven minutes of a six day trial,

and 18 answers from one of 13 government witnesses, who gave a total of 2,745

answers during their testimony, amounts to a stage of a trial, we would have to

conclude that the presentation of the government witnesses at Roy’s trial was a

collection of 152 separate critical stages (2,745 ÷ 18 = 152.5) not even counting

other parts of the trial. If we did that, Cronic’s “very narrow” exception would be

very broad, contrary to what the Supreme Court and this Court stated. See Stano,

921 F.2d at 1153.

If 18 answers from one of 13 witnesses against a defendant were enough to

be a critical stage, what would not be? Would a single question and inculpatory

9 En Banc Br. of Appellant at 23 (“The quoted direct examination of the government expert occurred during defense counsel’s absence. It involved the admission of inculpatory and disputed evidence. It was, therefore, a critical stage of trial.”).

28 Case: 12-15093 Date Filed: 04/26/2017 Page: 29 of 281

answer from a government witness be enough to constitute a critical stage of the

trial? Under Roy’s extreme view it would be. He argues that: “The presentation

of inculpatory testimony by a government witness is a critical stage of trial.” En

Banc Br. of Appellant at 14. The dissenting opinion agrees with that view. If

counsel misses even one inculpatory answer from a government witness, in the

dissent’s view that’s it, irreparable error has been committed no matter what

happens in the rest of the trial. But it cannot be the law that every inculpatory

answer given by every government witness (or defense witness on cross-

examination) is a separate stage of the proceedings against the defendant. Trials

don’t consist of thousands of critical stages.

Although the brevity of counsel’s absence in this case and how little he

missed is striking, it’s not merely the fleeting nature of the absence that convinces

us that counsel was not gone during an entire “stage of [the] trial.” See Cronic,

466 U.S. at 659, 104 S. Ct. at 2047. Length alone does not always define a stage

of a trial. Depending on the circumstances, an arraignment could take 10 minutes

or less, although it is a critical stage. See Bell, 535 U.S. at 695–96, 122 S. Ct. at

1851.

The Supreme Court has instructed us that it has used the term “critical stage”

“to denote a step of a criminal proceeding, such as arraignment, that held

significant consequences for the accused.” Bell, 535 U.S. at 695–96, 122 S. Ct. at

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1851. And decision after decision shows that what the Court means when it does

use the term “stage” for Cronic purposes is a qualitatively distinct, discrete, and

separate phase or step of a criminal proceeding where the defendant has a right to

counsel, such as an arraignment, a post-indictment lineup, a preliminary hearing, a

plea hearing, closing arguments as a whole, or a sentence proceeding as a whole.

See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009)

(describing 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.’”); Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977)

(“[S]entencing is a critical stage of the criminal proceeding at which [the

defendant] is entitled to the effective assistance of counsel.”); Gilbert v. California,

388 U.S. 263, 272, 87 S. Ct. 1951, 1956 (1967) (“[A] post-indictment pretrial

lineup . . . is a critical stage of the criminal prosecution . . . .”); White, 373 U.S. at

59–60, 83 S. Ct. at 1051 (“Whatever may be the normal function of the

‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as

arraignment . . . .”); Hamilton, 368 U.S. at 53, 82 S. Ct. at 158 (describing

arraignment as “a critical stage in a criminal proceeding”).

In conformity with what the Supreme Court has done in this area, our sister

circuits generally treat “stage” in “critical stage” as meaning either a self-contained

proceeding or a discrete and separately identifiable portion of a larger proceeding.

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See, e.g., United States v. Ross, 703 F.3d 856, 873–74 (6th Cir. 2012) (deciding

that a competency hearing is a critical stage); McNeal v. Adams, 623 F.3d 1283,

1285, 1289 (9th Cir. 2010) (after considering several factors that might “make a

proceeding a critical stage,” holding that a hearing on a motion to compel the

defendant to provide a DNA sample is not a critical stage) (emphasis added);

McDowell v. Kingston, 497 F.3d 757, 762–63 (7th Cir. 2007) (explaining that no

Supreme Court authority indicates “that [a defendant’s] testimony, isolated from

the rest of his defense, constitutes a critical stage of the litigation,” and holding that

even the complete testimony of the defendant is not a critical stage); 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” is a critical

stage) (emphasis added).

Those decisions of the Supreme Court and of other circuits are consistent

with the everyday definition of “stage” as “a single step or degree in a process; a

particular phase, period, position, etc., in a process, development, or series.”

Stage, Random House Webster’s Unabridged Dictionary (2d ed. 2001) 1853–54.

In our lives, as well as throughout the law, when we refer to “stages” we do not

mean fleeting moments or small parts of events. Instead, we use the word to refer

to larger, discrete component parts of a process that share a common characteristic.

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For example, adolescence is a stage of life, but we would never speak or think of

every minute, hour, or day during adolescence by itself as a separate or discrete

stage of life.

The 18 questions and answers that Roy’s counsel missed do not fit any

accepted definition of “stage” or “critical stage.” They do not constitute a separate

step in the process of the trial, or a discrete phase of it. Not only are they not a

stage of the trial, those 18 questions and answers are not even an identifiable stage

of Deputy Longson’s testimony. They are just a small part of it — only three

transcript pages out of 177 total pages of his testimony. Nothing but counsel’s

absence marks the 18 questions to Longson as different from all of the others put to

him before lunch or all of those put to him after he returned to the courtroom

following lunch. They are all questions and answers of the same type as those that

preceded and followed them, and they occurred during direct examination of the

same one of the 13 government witnesses, asked by the same government lawyer.

The 18 questions and answers counsel missed are just a small part of the more than

2,500 that occurred during the six-day trial. Not only that, but all of those 18

questions were repeated after counsel returned to the courtroom.

The only defining characteristic of what took place in the trial during the

seven minutes while Roy’s counsel was absent is that it occurred while Roy’s

counsel was absent. Roy would have us define “stage” to equate with the absence

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of an attorney so that anything that happened in a trial during the absence of an

attorney, however brief it was, would be a stage of the trial. That definition is

hopelessly circular. Because the brief period during which Roy’s counsel was

absent is not itself a “stage of his trial,” Roy did not suffer “the complete denial of

counsel” for “a critical stage of his trial.” Cronic, 466 U.S. at 659, 104 S. Ct at

2047. For that reason, there was no Cronic error in this case.

We will discuss the Cronic “critical stage” arguments of Roy and the dissent

now. After doing that, we will turn to the related but different question of whether

a presumption of prejudice should arise when defense counsel is absent from a

substantial portion of the trial.

1. The Geders, Herring, and Brooks Decisions

The dissenting opinion relies on Geders v. United States, 425 U.S. 80, 96

S. Ct. 1330 (1976), Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550 (1975), and

Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891 (1972), which it contends

involved “the denial of counsel ‘at a critical stage of . . . trial.’” Dissenting Op. at

255 & n.14 (alteration in original) (emphasis omitted) (quoting Cronic, 466 U.S. at

659, 104 S. Ct. at 2047). That interpretation ignores the unique type of

constitutional violations those cases involved and it ignores what the Court later

said about those decisions. See Perry v. Leeke, 488 U.S. 272, 279–80, 109 S. Ct.

594, 599–600 (1989).

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In its pre-Cronic decision of Geders, the Court applied a presumption of

prejudice to a Sixth Amendment violation that occurred when the trial court barred

defense counsel from advising or otherwise assisting his client during a 17-hour

recess. 425 U.S. at 91, 96 S. Ct. at 1337. The order had prevented the defendant

from discussing important matters with counsel, including “tactical decisions to be

made and strategies to be reviewed.” Id. at 88, 96 S. Ct. at 1335. The Geders

decision did not explicitly apply the “critical stage” rule or analysis; in fact, the

opinion does not mention the term “critical stage” or even the word “stage.”

Instead, as the Court explained later, Geders was one of a line of decisions

presuming prejudice where a defense attorney was prevented from, or impeded in,

rendering assistance of counsel to his client because of an unconstitutional statute

or court order. See Perry, 488 U.S. at 279–80, 109 S. Ct. at 599–600. Recognizing

that special subtype of Sixth Amendment violation, as the Court pointed out in

Perry, is consistent with what Strickland itself held. Id. at 279, 109 S. Ct. at 599.

While shortcomings and failures of counsel require a petitioner to show prejudice

from the deficient performance, “direct governmental interference with the right to

counsel is a different matter.” Id. The Perry Court quoted the following passage

from Strickland to drive home the point:

Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. See, e.g., Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330 (1976) (bar on 34 Case: 12-15093 Date Filed: 04/26/2017 Page: 35 of 281

attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605, 612–13, 92 S. Ct. 1891, 1895 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570, 593–96, 81 S. Ct. 756, 768–70 (1961) (bar on direct examination of defendant).

Id. at 280, 109 S. Ct. at 599 (citations altered) (quotation marks omitted).

The statutory or court-ordered interference exception to the prejudice

requirement that was applied in Geders, Herring, and Brooks, that was recognized

in Strickland, and that was discussed in Perry, does not apply in this case and does

not govern our critical stage analysis. No statute or court-ordered bar kept Roy’s

trial counsel out of the courtroom for those seven minutes following lunch on the

second day of trial. And no statute or court order interfered with the ability of

Roy’s counsel to make independent decisions about how to conduct the defense.

2. The Gonzalez-Lopez, Woods, and Williams Decisions

The dissenting opinion also relies heavily on the Supreme Court’s decision

in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557 (2006), which

did not involve an attorney’s brief absence from the courtroom. Instead, it

involved a complete violation of “the right of a defendant who does not require

appointed counsel to choose who will represent him.” Id. at 144, 126 S. Ct. at

2561; see id. at 143–44, 126 S. Ct. at 2561 (holding that the district court’s

erroneous rulings “violated respondent’s Sixth Amendment right to paid counsel of

his choosing”); id. at 146, 126 S. Ct. at 2562 (“[T]he right at stake here is the right 35 Case: 12-15093 Date Filed: 04/26/2017 Page: 36 of 281

to counsel of choice[.]”); id. at 147, 126 S. Ct. at 2563 (“The right to select counsel

of one’s choice, by contrast [to the right to effective assistance of counsel], has

never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.”);

id. at 152, 126 S. Ct. at 2566 (“[T]he Government has conceded that the District

Court here erred when it denied respondent his choice of counsel.”).

The deprivation of the right to retained counsel of choice in Gonzalez-Lopez

was anything but momentary; it lasted longer than the trial itself. It was complete,

lasting throughout the entirety of the opening statements, the presentation of all of

the prosecution’s case, the presentation of all of the defense case, the closing

arguments, the jury instructions, the return of the verdict, and the post-verdict

proceedings. Id. at 142–44, 126 S. Ct. at 2560–61. As the Supreme Court noted,

“the deprivation of choice of counsel pervade[d] the entire trial.” Id. at 150, 126

S. Ct. at 2565. As a result, the start-to-finish “erroneous deprivation of the right to

counsel of choice” in Gonzalez-Lopez had “consequences that are necessarily

unquantifiable and indeterminate” and “unquestionably qualifies as ‘structural

error.’” Id. at 150, 126 S Ct. at 2564 (quotation marks omitted). 10

10 In its Gonzalez-Lopez opinion the Court cited Cronic only once, actually relying on Cronic as support for the proposition that a defendant is usually required to show prejudice. See Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct. at 2562 (“The cases the Government relies on involve the right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice. See, e.g., Strickland, 466 U.S. at 694, 104 S. Ct. 2052; Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237 (2002); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984).”) (citation reformatted).

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The Supreme Court explained in some detail why it would be impossible to

apply the harmless error rule and gauge the prejudicial effect of depriving a

defendant of the attorney he had retained and forcing him to use a different one

during the entire trial and post-trial stages:

Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310, 111 S. Ct. 1246 — or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless- error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.

Id. at 150, 126 S. Ct. at 2564–65. The Court also explained the difference between

the denial of retained counsel of choice and more typical ineffective assistance

violations:

[I]f and when counsel’s ineffectiveness “pervades” a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel — 37 Case: 12-15093 Date Filed: 04/26/2017 Page: 38 of 281

in matters ranging from questions asked on voir dire and cross- examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently — or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable.

Id. at 150–51, 126 S. Ct. at 2565. Those explanations underscore how

distinguishable the Gonzalez-Lopez case is from this one.

None of the Supreme Court’s reasoning about why it is impossible to gauge

the prejudicial impact of forcing a different attorney on the defendant throughout

the entire trial and post-trial stages of a case applies to a seven-minute absence of

counsel during a six-day trial when the missed testimony was not only transcribed

for review but was also repeated in the presence of counsel after he returned (and

as repeated was transcribed again).

The momentary absence of counsel from the courtroom in this case is

entirely different from the complete denial of counsel of choice throughout the

Gonzalez-Lopez case. A momentary absence, unlike a complete denial of counsel

of choice, does not affect the choice of “strategies with regard to investigation and

discovery, development of the theory of defense, selection of the jury, presentation

of the witnesses, and style of witness examination and jury argument.” Id. at 150,

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126 S. Ct. at 2564. It does not “affect whether and on what terms the defendant

cooperates with the prosecution, plea bargains, or decides instead to go to trial.”

Id. It does not require us to consider, as courts would with a complete denial of

counsel of choice, “such intangibles as argument style and relationship with the

prosecutors,” or what things the denied counsel “would have handled

differently — or indeed, would have handled the same but with the benefit of a

more jury-pleasing courtroom style or a longstanding relationship of trust with the

prosecutors.” Id. at 151, 126 S. Ct. at 2565. The denial of counsel of choice

“bears directly on the framework within which the trial proceeds — or indeed on

whether it proceeds at all.” Id. at 150, 126 S. Ct. at 2564–65 (quotation marks and

citation omitted). The momentary absence of Roy’s counsel from the courtroom

does not.

To borrow the Supreme Court’s words, “[t]he difficulties of conducting the

two assessments of prejudice are not remotely comparable.” Id. at 151, 126 S. Ct.

at 2565. They are not comparable because what Roy’s momentarily absent counsel

would have done, or should have done, had he been present are “identifiable

mistakes,” and “[w]e can assess how those mistakes affected the outcome.” Id. at

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150–51, 126 S. Ct. at 2565; see infra Part VI (explaining why the error was

harmless beyond a reasonable doubt in this case).11

The dissent also goes astray in its reading of Woods v. Donald, 575 U.S.

___, 135 S. Ct. 1372 (2015) (per curiam), a decision that actually reversed a grant

of habeas relief based on a lower court’s holding that Cronic error occurred when

defense counsel was absent for 10 minutes during the testimony of a prosecution

witness. See Dissenting Op. at 246. The Sixth Circuit had held that the state court

decision denying the petitioner habeas relief because of that 10-minute absence

was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court within the meaning of 28 U.S.C.

§ 2254(d)(1). 135 S. Ct. at 1375. In reversing the Sixth Circuit, the Supreme

Court pointed out that none of its own holdings have addressed defense counsel’s

absence during the presentation of testimony that is irrelevant to the defendant’s

theory of the case. Id. at 1377. It did not hold or say, however, that a brief

absence during testimony that is relevant to the defendant’s theory of the case is

Cronic error. In fact, the Court cautioned that it was expressing “no view on the

merits of the underlying Sixth Amendment principle,” because “[a]ll that matters

11 How distinguishable Gonzalez-Lopez is from this case and others involving brief absences of counsel from the courtroom is evident from the dissent’s inability to point to any decision of any court anywhere suggesting that the holding of Gonzalez-Lopez or anything the Supreme Court said in that case is applicable to momentary absence of counsel situations.

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here, and all that should have mattered to the Sixth Circuit, is that we have not held

that Cronic applies to the circumstances presented in this case.” Id. at 1378

Despite that caution, the dissent insists that more mattered in the Woods

decision than the Supreme Court realized. What the Court failed to realize,

according to the dissent, is that despite its protestations to the contrary, it was

offering “valuable insight into the type of distinctions the Court may make if and

when it takes such a case on direct review.” Dissenting Op. at 246 n.11. So what

should we believe –– the Supreme Court’s emphatic statement that it was

expressing “no view on the merits of the underlying Sixth Amendment principle,”

or the dissent’s insistence that yes it was? We choose to believe the Supreme

Court meant what it said. See Mathis v. United States, 579 U.S. ___, 136 S. Ct.

2243, 2254 (2016) (“[A] good rule of thumb for reading our decisions is that what

they say and what they mean are one and the same . . . .”).

The dissent also relies on the decision in Williams v. Pennsylvania, 579

U.S. ___, 136 S. Ct. 1899 (2016). Dissenting Op. at 259–260. But that decision

dealt solely with structural error involving a biased judge. It had nothing to do

with a brief absence of defense counsel from the courtroom. To the extent that the

dissent cites it for the proposition that structural error requires reversal, the answer

is that of course it does but there was no structural error in this case.

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3. The Vines Decision

Except in the now-vacated panel decision in this case, we have not yet

decided whether the brief absence of counsel during the presentation of testimony

that directly inculpates the defendant is Cronic error. A couple of decades ago a

panel of this Court did decide that the absence of defense counsel while

government witnesses gave testimony that did not directly inculpate the defendant

was not Cronic error. Vines v. United States, 28 F.3d 1123, 1128 (11th Cir. 1994).

The case involved a two-defendant, two-day drug trial, and at 4:15 p.m. on the first

day counsel for Vines left “for the remainder of the day” for some undisclosed

reason. Id. at 1125. The opinion does not disclose how much of the trial day

remained when counsel left, but it does reveal that during counsel’s absence, an

FBI agent and another government witness testified. Id. at 1126. The FBI agent

testified, among other things, about how the manner of shipping that the

defendants used in that case “fit the modus operandi of contraband smugglers.” Id.

Vines was convicted on the conspiracy charge and acquitted on the

distribution charge, and he argued on appeal from the denial of his 28 U.S.C.

§ 2255 motion that the absence of his counsel during the testimony of those two

government witnesses was a Sixth Amendment violation that entitled him to have

his conviction set aside. Id. at 1126–27. After noting that the Strickland decision

applies only where counsel is present, the Court assumed, without deciding, that

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the absence of counsel during the taking of testimony is constitutional error. Id. at

1127–28. It addressed Vines’ argument that the absence of his counsel from the

trial was not only a Sixth Amendment violation but also Cronic error giving rise to

an irrebutable presumption of prejudice. Id. at 1127–28. The Court reasoned that

“Cronic’s presumption of prejudice applies to only a very narrow spectrum of

cases,” and concluded that Vines was not one of those rare cases. Id. at 1128 & n.8

In reaching that conclusion, the Court rejected Vines’ argument “that under

Cronic the taking of evidence is a critical stage of trial per se,” and stated that “we

decline to give birth to a rule that the taking of evidence is necessarily a critical

stage of trial.” Id. at 1128. After reviewing the record, it found that “no evidence

directly inculpating Vines was presented during his counsel’s absence.” Id. The

holding of Vines fitted to the facts before the Court was that: “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.” Id.

While panel decisions do not bind us when we sit en banc, we find

persuasive the Vines holding that the taking of testimony or other evidence that

only indirectly inculpates the defendant is not a critical stage of the trial. As the

Court said there: “While trial counsel may exercise poor judgment in absenting

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himself or herself from a portion of a trial, such flawed judgment does not

necessarily infect the entire trial.” Id. at 1129. Counsel’s absence was neither

Cronic error nor some other type of structural error but instead was trial error

“capable of quantitative assessment” and subject to the harmless error rule. Id.

That is all that the Vines decision did hold or could hold. It did not hold ––

and because the facts of that case did not present the issue it could not have held ––

that the taking of any testimony that does directly inculpate the defendant is a

critical stage of the trial for Cronic purposes. 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);

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000).

4. The Decisions of Other Circuits

A handful of other circuits have addressed Cronic issues arising from

counsel missing part of a trial. Some of the cases giving rise to those issues are

more factually similar to this one than others are. And some of those decisions are

more persuasive than others.

i. The Out-of-Circuit Decisions Roy Relies On

Roy argues that some decisions from other circuits support his bold claim

that any inculpatory testimony, however brief, constitutes a critical stage of any

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trial regardless of the circumstances. See Burdine v. Johnson, 262 F.3d 336 (5th

Cir. 2001) (en banc); United States v. Russell, 205 F.3d 768 (5th Cir. 2000); Olden

v. United States, 224 F.3d 561 (6th Cir. 2000); Green v. Arn, 809 F.2d 1257 (6th

Cir. 1987), vacated on other grounds, 484 U.S. 806, 108 S. Ct. 52 (1987),

reinstated, 839 F.2d 300 (6th Cir. 1988). All four of those decisions are readily

distinguishable.

In two of them, Russell and Olden, counsel was absent for more than an

entire day of trial. The Fifth Circuit decided in Russell that the absence of a lawyer

for two days of his client’s trial for drug and money-laundering conspiracy was

Cronic error requiring a presumption of prejudice. See Russell, 205 F.3d at 769–

70; 772–73. During his absence counsel missed the testimony of no fewer than 18

government witnesses — not questions but witnesses — and the admission of

“numerous exhibits,” all of which went to prove the existence of the money-

laundering conspiracy. See id. at 770. Russell’s attorney did not hear a single

word of the testimony of those 18 government witnesses, nor did he have the

chance to cross-examine any of them.

The difference between that case and this one is striking. While counsel in

Russell missed two full days and all of the testimony of 18 government witnesses,

Roy’s counsel did not miss a day, or an hour, or even 10 minutes worth of

testimony of a single witness. He missed only seven minutes of the testimony of

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one government witness; he was present during all but three of the 177 transcript

pages of that witness’ testimony; and he heard every bit of all of the testimony of

the other 12 government witnesses. Not only that, but the Fifth Circuit in Russell

rejected the position that Roy takes in this case. It unequivocally stated: “Russell

urges this court to adopt a bright line rule that the taking of any evidence at trial in

the absence of counsel is prejudicial per se under [Cronic]. Cronic does not so

hold and we decline to fashion such a rule.” Id. at 771 (citation omitted). We

agree.

Another decision Roy relies on is Olden, where the Sixth Circuit concluded

that a defense attorney’s “excessive absence” during trial amounted to Cronic

error. Olden, 224 F.3d at 566, 568–70. Counsel was “absent on numerous

occasions during trial,” including for two days during which he missed hearing the

testimony of at least two prosecution witnesses, which incriminated his client. Id.

at 568. That is obviously different from what happened here.

In the other two out-of-circuit decisions that Roy relies on, the courts were

unable to determine exactly how long defense counsel had been absent during the

trial. In Green, which like Olden was a Sixth Circuit decision, defense counsel was

absent for at least 100 minutes of trial, during which the key government witness

against his client was cross-examined by another defendant’s attorney. See Green,

809 F.2d at 1260–61. How much more than the hour and forty minutes of that

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important testimony counsel missed could not be determined from the record.12

And in Burdine, another Fifth Circuit decision, the court found Cronic error

because the capital defendant’s counsel had slept through “a not insubstantial

portion of the 12 hour and 51 minute trial,” including during the prosecutor’s

presentation of evidence against the defendant. 262 F.3d at 338–40, 348–49. One

juror testified that he recalled counsel sleeping as many as 10 different times

during the short trial. Id. at 339. By contrast, seven minutes is not a substantial

portion of a six-day trial. And one absence, whether of consciousness or

physically, is not 10. It is also worth noting that the Fifth Circuit explicitly stated

12 There is some ambiguity in the Green opinion about the actual length of defense counsel’s absence, but portions of the transcript that are quoted in that opinion indicate that he was gone for at least an hour and forty minutes of the trial. See Green, 809 F.2d at 1260 (noting that defense counsel for Green’s codefendants had begun cross-examining a witness at 2:00 p.m. and by 3:40 p.m. the defendant’s trial counsel still had not returned to the courtroom). Not only that, but Green’s counsel may have also missed other portions of the criminal proceedings against her, including an entire hearing on a suppression motion, the government’s closing arguments at trial, and the jury asking the judge questions that had come up during its deliberations. See id. at 1259 n.1. The Green court did suggest that “[t]he absence of counsel during the taking of evidence on the defendant’s guilt is prejudicial per se” and forecloses any inquiry into harmless error. Id. at 1263. However, the court undercut that apparently categorical statement when it noted that “some absences by a criminal defendant’s attorney might be so de minimis that there would be no constitutional significance.” Id. at 1261. In any event, the actual holding of the Green decision cannot be that any absence of counsel during any inculpatory testimony requires a presumption of prejudice because those were not the facts of that case, and the holding of a case cannot extend past its facts, as we have repeatedly held. See, e.g., Anders, 346 F.3d at 1031; Watts, 316 F.3d at 1207; Aguillard, 217 F.3d at 1321. If the holding of Green were that the absence of counsel during the taking of any evidence of a defendant’s guilt is “prejudicial per se,” we would disagree for the reasons explained throughout this opinion.

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in Burdine that its holding was “limited to the egregious facts found” in that case.

Id. at 349.

All four of the cases on which Roy bases his argument do have one thing in

common with each other: they are all cases in which a meaningful prejudice

analysis would be difficult, if not impossible, and would consume a lot of judicial

resources. In both Russell and Olden, for example, the court would have had to

pore over two days of inculpatory testimony by multiple witnesses to even begin

the prejudice analysis. See Russell, 205 F.3d at 769–70, 772–73; Olden, 224 F.3d

at 568–69. And in Green and Burdine, the problem was even worse, because the

record in those cases did not disclose exactly when counsel was absent (or in

Burdine asleep), which adds a thick layer of speculation on top of that which is

inherent in any kind of prejudice determination. See Burdine, 262 F.3d at 339–40;

Green, 809 F.2d at 1260–62. When an appellate court knows that counsel’s

absence was substantial but cannot tell exactly what testimony or other evidence

counsel missed, the prejudice inquiry is more difficult and may be impossible.

That is not a problem here. We know exactly when Roy’s counsel was

absent. We know exactly which 18 questions and answers he missed. We know

exactly which of those 18 questions and answers were repeated after he returned to

the courtroom. And we know what counsel did, and did not do, after he heard

those questions asked and answered. We also know which counts of the

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indictment those questions and answers were directly related to and which ones

they were not. Because we know all of that, and given the brevity of counsel’s

absence, the prejudice inquiry in this case is not impossible; it is not even difficult.

See infra Part VI.

ii. The Out-of-Circuit Decisions That Are More Analogous and Persuasive

The Second Circuit has refused to presume prejudice from defense counsel’s

absence in a case that is far more similar to this one than any of those that Roy

relies on. See United States v. Kaid, 502 F.3d 43 (2d Cir. 2007). In the Kaid case

several codefendants were convicted of conspiring to commit money laundering

and of trafficking in contraband cigarettes. Id. at 45. Defense counsel for one of

the codefendants, Azzeaz Saleh, had missed 20 minutes of the trial because he

misunderstood when the judge planned to resume after a lunch break. Id. at 44–45.

The trial began without him, and while he was absent the government presented

evidence that was highly inculpatory of Saleh. Id. at 45. Counsel missed the

government showing the jury a video of Saleh and his codefendants purchasing the

allegedly contraband cigarettes, and counsel missed a witness testifying that at nine

separate points the video showed Saleh. Id.

Saleh argued on appeal that he was entitled to a presumption of prejudice

because his attorney had been absent during a critical stage of the trial. Id. at 45–

46. The Second Circuit unequivocally rejected that argument. Id. at 46–47. It 49 Case: 12-15093 Date Filed: 04/26/2017 Page: 50 of 281

affirmed Saleh’s convictions after concluding that he had not shown that he was

prejudiced by 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 counsel returned to the courtroom he had

been able to cross-examine the witness who had repeatedly identified Saleh in the

video. Id. at 45, 47.

The Second Circuit’s decision that the presumption of prejudice did not

apply in that case is important. The circumstances in Roy’s case are even stronger

for affirmance, not only because the absence in Kaid was nearly three times as long

as the absence in Roy’s case, but also because there is no indication in the Kaid

opinion that the evidence counsel missed was repeated after counsel returned to the

courtroom, as it was in Roy’s case. See generally 502 F.3d 43.

The Second Circuit in Kaid is not alone in its analysis or conclusion. In our

view, the best reasoned out-of-circuit decision holding that a brief absence of

counsel is not structural error is the Eighth Circuit’s in the Sweeney case. See

Sweeney v. United States, 766 F.3d 857 (8th Cir. 2014). In that case, defense

counsel left the courtroom and went to the restroom during the direct examination

of a key prosecution witness –– a co-conspirator who had flipped and was

providing inculpatory testimony against the defendant. Id. at 859. While counsel

was out of the courtroom, the cooperating co-conspirator witness answered 43 of

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the prosecutor’s questions (as compared to 18 questions in Roy’s case) covering

six transcript pages (as compared to three in Roy’s case). See id. at 859, 861;

Redacted Trial Tr. at 122–29, United States v. Sweeney, No. 06-CR-0249(PJS) (D.

Minn. July 22, 2009) (ECF No. 390). That is twice as many transcript pages of

testimony and more than twice as many questions and answers as counsel missed

in Roy’s case.

Sweeney was a 28 U.S.C. § 2255 proceeding, and the certificate of

appealability stated the issue as whether “the actual absence of counsel for a brief

period of time during the direct testimony of a government witness [was] subject to

harmless-error analysis.” Id. at 858. The parties agreed, and the Eighth Circuit

recognized, that the absence of counsel, which the judge knew about and permitted

without Sweeney’s consent, was a violation of the Sixth Amendment right to

counsel. Id. at 859–60. Sweeney argued “that in light of Cronic, the error is a

structural defect that is presumptively prejudicial and requires reversal,” while the

government countered “that because of the brevity of Sweeney’s counsel’s

absence, it amounted to nothing more than a trial error subject to a harmless-error

analysis.” Id. at 860.

In its analysis, the Eighth Circuit noted that: “The Supreme Court has

divided constitutional violations that occur during a criminal proceeding into two

categories: trial errors and structural defects.” Id. It looked to, and quoted from,

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Supreme Court decisions for the definition of those terms: “A ‘trial error’ is an

error that may ‘be quantitatively assessed in the context of other evidence

presented,’ and is subject to harmless-error analysis.” Id. (quoting Fulminante, 499

U.S. at 307–08, 111 S. Ct. at 1264). By contrast, a “‘structural defect’ is

something that ‘affects the framework within which the trial proceeds, rather than

simply an error in the trial process itself’ and thus ‘defies analysis by “harmless-

error” standards.’” Id. (quoting Fulminante, 499 U.S. at 309–10, 111 S. Ct. at

1265) (alterations omitted).

The Eighth Circuit pointed out that “[t]he Supreme Court has recognized

that most constitutional errors can be harmless, and that structural defects are the

exception and not the rule.” Id. (citation and quotation marks omitted). It quoted a

Supreme Court’s decision holding that “[o]nly structural defects that undermine

‘the fairness of a criminal proceeding as a whole require reversal without regard to

the mistake’s effect on the proceeding.’” Id. (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 2339 (2004)) (alterations omitted). The

harmless error rule applies to everything else, or as the Supreme Court put it in the

decision the Eighth Circuit quoted, except for defects that undermine the fairness

of the entire criminal proceeding, “relief for error is tied in some way to prejudicial

effect.” Dominguez Benitez, 542 U.S. at 81, 124 S. Ct. at 2339.

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The Eighth Circuit also relied on the Supreme Court’s holding in Satterwhite

that “those ‘Sixth Amendment violations that pervade the entire proceeding’

can ‘never be considered harmless.’” Id. at 860–61 (quoting Satterwhite, 486 U.S.

at 256, 108 S. Ct. at 1797) (emphasis in Sweeney). Applied to counsel absences

during trial, that holding means that those counsel absences extensive enough to

pervade the trial process and undermine the fairness of the trial as a whole amount

to Cronic or structural error. All other counsel absences are trial errors subject to

the harmless error rule. And the court concluded that “Sweeney’s counsel’s brief

absence was not a ‘complete’ absence because it only lasted three minutes,” and

“the brevity of the absence distinguishes this case from the ‘complete denial of

counsel’ discussed in Cronic.” Id. at 861 (quoting Cronic, 466 U.S. at 659, 104

S. Ct. at 2047) (emphasis in Sweeney).

In affirming the rejection of Sweeney’s Cronic claim, the Eighth Circuit

quoted part of the district court’s reasoning in that case, which is worth requoting

here. This is what the Eighth Circuit by adoption said about why the

circumstances in that case (which are materially identical to those in this case) are

well-suited for harmless error analysis:

The fact that the record demonstrates precisely what [Sweeney’s counsel] missed while he was out of the room — and the fact that his absence was so brief — allows the Court to confidently assess whether Sweeney was harmed by [his counsel’s] absence. Indeed, the Court is far better equipped to conduct a harmless-error analysis in

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this case than it is in other contexts, in which a substantial amount of speculation is unavoidable.

Id. (quoting the district court) (alterations in original). The court in Sweeney knew

exactly what counsel missed because it had a transcript of the testimony taken

while he was gone, just as we do in this case.

The reasoning in Sweeney, which we adopt, dovetails with the Supreme

Court’s explanation of its decision in Satterwhite. See 486 U.S. 249, 108 S. Ct.

1792. The Sixth Amendment error in Satterwhite occurred when a psychiatrist for

the State testified at a capital sentencing proceeding based on what the defendant

had told him during an examination conducted without the knowledge of his

attorney in violation of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866 (1981).

Satterwhite, 486 U.S. at 251–55, 108 S. Ct. at 1795–96. In determining that the

Sixth Amendment violation resulting from admission of the psychiatrist’s

testimony was not structural error but was instead trial error subject to review for

harmlessness, the Supreme Court explained:

We have permitted harmless error analysis in both capital and noncapital cases where the evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial. In Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174 (1972), for example, the Court held the admission of a confession obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964), to be harmless beyond a reasonable doubt. And we have held that harmless error analysis applies to the admission of identification testimony obtained in violation of the right to counsel at a postindictment lineup. Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458 (1977); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967) 54 Case: 12-15093 Date Filed: 04/26/2017 Page: 55 of 281

(capital case); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). Just last year we indicated that harmless error analysis would apply in a noncapital case to constitutional error in the use of a psychological evaluation at trial. Buchanan v. Kentucky, 483 U.S. 402, 425, n.21, 107 S. Ct. 2906, 2919, n.21 (1987).

Id. at 257–58, 108 S. Ct. at 1798 (emphasis added) (citations reformatted).

The Sixth Amendment violation in Roy’s case did not occur merely because

counsel was late coming back from lunch. Tardiness does not violate the

Constitution. The Sixth Amendment violation occurred because a government

witness answered 18 questions in counsel’s absence. The constitutional error was

in admitting that particular evidence, those answers, without counsel being there.

And, as the Supreme Court held in Satterwhite and in five other decisions that it

cited, harmless error analysis applies “where the evil caused by a Sixth

Amendment violation is limited to the erroneous admission of particular evidence

at trial.” Id. at 257, 108 S. Ct. at 1798. It applies here. 13

13 Many state appellate courts have also concluded that the harmless error rule applies to the temporary absence of defense counsel from the courtroom. 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); Hodges v. State, 116 S.W.3d 289, 292–94 (Tex. Ct. 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); Wilson v. State, 764 So. 2d 813, 815–19 (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”). In the Hodges

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5. The Dissent’s “Sole Defendant” Theory

The dissent attempts to distinguish the well-reasoned decisions in Kaid and

Sweeney on the ground that those cases grew out of trials with more than one

defendant, while Roy was the only defendant in this trial. See Dissenting Op. at

244–245. Indeed, at least five times the dissenting opinion appears to argue that

the issue is not whether Cronic error occurs when a defendant is without counsel in

the courtroom during the presentation of inculpatory evidence in any trial, but

instead the issue is whether it is Cronic error for that to happen in a single-

defendant trial. See Dissenting Op. at 220 (“no other defendants or defense

counsel present”), 243 (“in a single-defendant trial”), at 244 (“none [of the other

cases] involved a single defendant deprived of his sole counsel”), at 245–246 (“the

sole defendant” in “a single-defendant, single-counsel case”), at 258 (“in the trial

of a single defendant represented by a single lawyer”).

The reasoning of the Second Circuit in Kaid and the Eighth Circuit in

Sweeney applies regardless of the number of defendants on trial. Completely

lacking from the dissent’s attempt to distinguish Kaid and Sweeney is any

convincing explanation for why the issue should turn on whether other defendants

decision, the Texas Court of 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, 116 S.W.3d at 294 n.7.

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represented by other counsel were also being tried. If a defendant’s right to counsel

is violated by his attorney’s brief absence from the courtroom during inculpatory

testimony against his client, there is no reason that it should matter if other

attorneys representing other defendants were in the courtroom at the time his

counsel was not there. The right violated is the right of each defendant to have

counsel representing him, not each defendant’s non-existent right to have counsel

representing his codefendants.

An attorney who represents a co-defendant has an ethical duty to zealously

advance the interests of that co-defendant within the bounds of the law, even where

those interests conflict with the interests of any other person who is on trial. He

ethically may, in keeping with his client’s best interests –– and in the finest

traditions of the Bar –– throw another defendant under the bus to help out his

client. An attorney has no ethical duty to look after, or care about, the interests of

anyone else regardless of whether their attorney is present. As the dissent states

elsewhere in its opinion, defense counsel is “both his client’s mouthpiece and his

client’s confidant.” Dissenting Op. at 264. An attorney for a co-defendant is not

another defendant’s mouthpiece and confidant. He is not, as the dissent seems to

believe, alternate defense counsel for any or all other co-defendants. Because the

presence or absence of other counsel for other defendants is legally and logically

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irrelevant to the Cronic or structural error issue, the Kaid and Sweeney decisions

are not distinguishable on that basis. 14

Because there is no principled way to limit an application of Cronic to

single-defendant trials, a holding in favor of Roy would have far-reaching effects.

As the dissenting opinion at the panel stage warned, if Roy’s position were

adopted:

Whatever measures a judge takes in response to today’s [panel] ruling, it will be practically impossible to prevent presumptive prejudice error in a large, multidefendant, long-running trial. See Green v. Arn, 809 F.2d 1257, 1265 (6th Cir.) (Boggs, J., dissenting), 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) (“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 long trial. It will not matter, as the [panel] 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

14 As we explain later, the dissent’s argument that the structural error inquiry varies depending on whether the absence of counsel occurs in a single-defendant or multi-defendant trial is also inconsistent with its argument that the absence of counsel is structural error because counsel must continually scrutinize the faces and body language of witnesses and jurors. See infra n.19.

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least why the attorney was absent or whether the judge noticed the absence. That is the rule the [panel] majority adopts.

United States v. Roy, 761 F.3d 1285, 1323 (11th Cir.) (Ed Carnes, C.J.,

dissenting), reh’g en banc granted, opinion vacated, 580 F. App’x 715 (11th Cir.

2014) (citation reformatted).

Of course, even if a holding in favor of Roy could somehow be limited to

single-defendant trials, handing out automatic reversals anytime defense counsel

misses even a question or two still would not be cost-free. And the cost could be

significant, as the case of Manuel Noriega shows. He was the sole defendant in his

trial, which lasted for seven months. See United States v. Noriega, 117 F.3d 1206,

1209 (11th Cir. 1997); Boyd M. Johnson, III, Note, Executive Order 12,333: The

Permissibility of an American Assassination of a Foreign Leader, 25 Cornell Int’l

L.J. 401, 425 n.157 (1992) (stating that trial lasted for seven months); Noriega

Now Alone as Defendant, Chi. Trib., Sept. 5, 1991, 1991 WLNA 3826740. After

hearing evidence for seven months, the jury returned a verdict convicting him of

eight counts of racketeering, manufacturing and distributing cocaine, and traveling

in foreign commerce to promote an unlawful enterprise. See Noriega, 117 F.3d at

1209 n.1, 1210. The position of Roy and the dissent is that if it were later shown

that Noriega’s counsel had been out of the courtroom for seven minutes, or even

half a minute, during those seven months of trial and had missed any inculpatory

testimony at all, even if that testimony was repeated after counsel returned, the 59 Case: 12-15093 Date Filed: 04/26/2017 Page: 60 of 281

verdict would have to be set aside and the seven months of trial repeated with a

new jury, even if the government could show beyond any reasonable doubt that

counsel’s brief absence was harmless.

Unable to deal with the force of this single-defendant example on its

position, the dissent attempts to recast it as a “fearful[ ] query.” Dissenting Op. at

256. The point of the example is not that Manuel Noriega is a particularly bad

character as criminal defendants go. Nor is the point that if the defendant is a

really bad actor (such as someone like Roy who sexually molests a minor) we

should not do what the Constitution requires. Of course we should do what the

Constitution requires, but the question is what does it require and not require. The

Noriega example illustrates that if the Constitution required what the dissent insists

it does, it would lead to ludicrous results such as repeating a seven-month trial

merely because counsel for a sole defendant was out of the courtroom for one-half

minute, even though the only testimony taken while he was out was presented

again after he returned. The Constitution does not require such results, but the

dissent’s position would.

C. The Absence for a Substantial Portion of the Trial Exception

Many of the problems encountered in determining whether to apply a

presumption of prejudice to a defense counsel’s absence from trial arise because

courts try to cram all absence-of-counsel situations into Cronic’s Procrustean bed 60 Case: 12-15093 Date Filed: 04/26/2017 Page: 61 of 281

or, to vary the metaphor, fail to heed Cardozo’s warning about “the repression of a

formula, the tyranny of tags and tickets.” Benjamin N. Cardozo, Mr. Justice

Holmes, 44 Harv. L. Rev. 682, 688 (1931). The formula capable of impeding

thought in this area is the critical stage one, and the tag or ticket slapped on the

result is the Cronic label. They are useful (and obligatory) where appropriate to

the factual situation, but they are problematic or worse if used where they do not

apply. The law does not countenance, much less require, absurdities. And it is

absurd to say that every absence of counsel during a critical stage, however

momentary and whatever the circumstances, requires that a presumption of

prejudice be applied. It is also absurd to say that the only absences that justify a

presumption of prejudice are those that extend throughout an entire critical stage,

such as a trial. We don’t have to choose either extreme on the spectrum.

When it comes to the absence of counsel from some of a trial, the rule is not

“any is all,” nor is it “all or nothing.” The Supreme Court has never held that any

absence at all of counsel from trial warrants a presumption of prejudice no matter

what, and it has never held that only if counsel is absent throughout the entire trial

should prejudice be presumed. Some of our sister circuits have avoided either

extreme and the absurdities they lead to by recognizing, at least implicitly, that the

Cronic critical stage standard is not the exclusive formula for determining whether

to presume prejudice from the absence of counsel. They have supplemented the

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critical stage standard with a substantial portion of the trial standard. Under that

standard, even if counsel is not absent throughout an entire critical stage, prejudice

should be presumed if he is absent for a substantial portion of the trial.

1. The Substantial Portion Exception and the Cases from Which It Arose

The substantial portion exception has arisen out of cases in which defense

counsel fell asleep during the trial. Courts have recognized that, for Sixth

Amendment presumption of prejudice purposes, an attorney who is not consciously

present at trial because he is asleep is equivalent to an attorney who is not

physically present because he is outside the courtroom. See Burdine, 262 F.3d at

349 (“Unconscious counsel equates to no counsel at all.”); United States v.

DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987) (“[S]leeping counsel is tantamount

to no counsel at all . . . .”); Javor v. United States, 724 F.2d 831, 834 (9th Cir.

1984) (“[U]nconscious or sleeping counsel is equivalent to no counsel at all.”).

None of the circuits has concluded that counsel dozing off momentarily or sleeping

through a few questions and answers is enough to presume prejudice instead of

permitting the government to show beyond a reasonable doubt that the lapse was

harmless.

Four of the five circuits that have addressed the issue presume prejudice if

counsel slept through a substantial portion of the trial. See United States v. Ragin,

820 F.3d 609, 619 (4th Cir. 2016) (“We agree with other circuits and hold that a 62 Case: 12-15093 Date Filed: 04/26/2017 Page: 63 of 281

defendant’s Sixth Amendment right to counsel is violated when that defendant’s

counsel is asleep during a substantial portion of the defendant’s trial [and that a

presumption of prejudice is required].”); Muniz v. Smith, 647 F.3d 619, 623 (6th

Cir. 2011) (joining the Ninth, Fifth, and Second Circuits that “have held that the

denial of counsel with presumed prejudice only occurs once counsel sleeps through

a ‘substantial portion of defendant’s trial’”) (brackets omitted); Burdine v.

Johnson, 262 F.3d 336, 348-49 (5th Cir. 2001) (en banc) (finding that “defense

counsel slept during substantial portions” of the trial and in those circumstances

“prejudice must be presumed”); Javor v. United States, 724 F.2d 831, 834–35 (9th

Cir. 1984) (“When a defendant’s attorney is asleep during a substantial portion of

his trial, the defendant has not received the legal assistance necessary [and

prejudice must be presumed].”).

The other one of the five circuits to address the sleeping lawyer situation, the

Second Circuit, did so in Tippins v.Walker, 77 F.3d 682, 685–87 (2d Cir. 1996).

There the court declined to use the “substantial portion” standard because it found

the word “substantial” to be “unhelpful” in determining when prejudice must be

presumed in a sleeping lawyer situation. Yet, in its place the court adopted the

closely analogous standard of “repeatedly unconscious” or “repeated and

prolonged lapses” in consciousness. Id. at 687, 689. Whether application of a

presumption of prejudice turns on counsel having slept during a substantial portion

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of the trial (as the Fourth, Fifth, Sixth, and Ninth Circuits phrase it) or on his

having slept repeatedly for prolonged periods of time (as the Second Circuit

phrases it), all five circuits to address the matter agree that more than a short

absence of consciousness due to sleep during trial is required for prejudice to be

presumed.

But what is a “substantial portion” of the trial for purposes of this standard?

The Fourth Circuit offered this guidance:

While we conclude that the manner in which [trial counsel] slept in the instant case was substantial, we decline to define this term for all cases. Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through. At the same time, however, while we decline to dictate precise parameters for what must necessarily be a case-by-case assessment, we caution district courts that the scope of our holding today should not be limited to only the most egregious instances of attorney slumber. Ragin, 820 F.3d at 622 n.11 (emphasis added). The three non-exclusive factors

listed — length of time missed, proportion of trial missed, and significance of the

missed portion — are all important.

We add to the Fourth Circuit’s non-exclusive list of factors for determining

whether what counsel missed was a substantial portion of the trial another factor at

least as important as those it set out: whether the specific part of the trial that

counsel missed is known or can be determined. Do we know what testimony he 64 Case: 12-15093 Date Filed: 04/26/2017 Page: 65 of 281

did not hear because he was asleep or outside the courtroom? This factor should

bear heavily on whether to presume prejudice or give the government an

opportunity to show beyond a reasonable doubt the lack of it, because in

determining if the defense was prejudiced because of something counsel missed, it

helps a lot to know what counsel missed. The Ninth Circuit in Javor noted the

difficulty in determining prejudice with “a record which lacked any indication of

when Javor’s attorney was alert and when he was sleeping.” 724 F.3d at 833; see

also Tippins, 77 F.3d at 686 (“[I]f counsel sleeps, the ordinary analytical tools for

identifying prejudice are unavailable. The errors and lost opportunities may not be

visible in the record, and the reviewing court . . . may be forced to engage in

unguided speculation.”) (quotation marks omitted). To inform our analysis of what

it means to be absent for a substantial portion of the trial, we turn to the facts in

each of the sleeping lawyer cases to see how substantial, or how repeated and

prolonged, the absence of consciousness by counsel was in the four cases where

prejudice was presumed and in the one where it was not.15

15 The dissenting opinion insists that the substantial portion standard turns on a “rigid comparison” and “mechanical focus,” one that looks only at the “minutes and seconds” that defense counsel was consciously or physically absent from the courtroom. See Dissenting Op. at 250. Of course the amount of time counsel was out is relevant. Would the dissent rigidly and mechanically have us ignore the length of time and treat one minute’s absence the same as one day’s absence? Would it have us treat a few questions missed as equivalent to a few volumes of testimony? Apparently the dissent would, because its position is that even a single inculpatory answer in itself constitutes a critical stage and structural error –– that there are hundreds or even

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2. Application by Other Circuits of the Substantial Portion of Trial Standard

We begin with the decision that gave birth to the substantial portion test. In

the Ninth Circuit’s Javor decision, defense counsel “was sleeping while testimony

pertaining to the petitioner was being adduced.” 724 F.2d at 834. He told a co-

defendant’s counsel that “he had missed some of the testimony and asked . . . if he

had missed anything related to the petitioner.” Id. (ellipses in original). Not only

that but “[t]he trial judge noted that Javor’s attorney was often ‘dozing’ and that

other attorneys ‘nudged’ and ‘kicked’ him to wake him up.” Id. Those facts

convinced the Ninth Circuit that counsel had been consciously absent during a

substantial portion of the trial and prejudice should be presumed.

We have already discussed the Fifth Circuit’s decision in the Burdine case.

See supra at 47. For present purposes, it is useful to recall that in Burdine defense

counsel slept repeatedly through “a not insubstantial portion of the 12 hour and 51

minute trial,” including during the prosecutor’s presentation of evidence against

thousands of separate critical stages in every trial. We would be the first circuit in the country to adopt such an extreme position. We disagree with the dissent’s position and agree with the five other circuits that have adopted the substantial portion standard (counting the Second Circuit which has adopted a materially identical standard). In doing so we recognize that the standard involves a case-by- case inquiry and consideration of a number of non-exclusive factors. It is neither rigid nor mechanical.

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the defendant. 262 F.3d at 338–40, 348–49. A juror testified to having seen

counsel asleep as many as 10 different times during the trial and for “a good

probably at least 10 minutes” on one occasion, and testimony showed that there

were “lots of incidents” of him sleeping while the prosecution was questioning

witnesses. Id. at 339. The deputy clerk, who was in the best position to observe

counsel, testified that he “was asleep for long periods of time during the

questioning of witnesses.” Id. The state collateral trial court found that “defense

counsel repeatedly dozed and/or actually slept during substantial portions of

Burdine’s capital murder trial so that defense counsel was, in effect, absent.” Id. at

340 (brackets omitted). On those facts the Fifth Circuit held that prejudice should

be presumed under the substantial portion standard but was careful to limit its

holding to “the egregious facts” in that case. Id. at 349.

In Ragin trial counsel did not dispute that he had slept. 820 F.3d at 622. In

fact, “counsel was asleep for much of Ragin’s trial.” Id. at 613. Throughout the

15-day trial, he slept “frequently . . . almost every day . . . morning and evening for

30 minutes at least at a time.” Id. at 621 (quotation marks and brackets omitted)

(ellipses in original). Some of the time he was seen “resting his head” as he slept.

Id. Finding “it impossible not to conclude that [he] slept and therefore was not

functioning as a lawyer during a substantial portion of the trial,” the Fourth Circuit

presumed prejudice. Id. at 622–23.

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In the Tippins case, the Second Circuit found that “counsel was unconscious

for numerous extended periods of time during which the defendant’s interests were

at stake.” 77 F.3d 685. He slept every day of the 12-day trial; he slept during

“two-thirds of the testimony” of the confidential informant who was a “critical”

prosecution witness; and he slept through “the majority” of the “damaging”

testimony of a co-defendant. Id. at 687–90 (brackets omitted). The court reporter

described counsel’s sleeping as “a continuous thing.” Id. at 688. More than one

witness actually heard him snoring. Id. at 688–89. It was on those extreme facts

that the Second Circuit found that defense counsel had not merely been inattentive

but had suffered repeated and prolonged lapses of consciousness because he slept

through much of the trial, justifying a presumption of prejudice. Id. at 687–90.

The attorney in the Muniz case “was asleep for an undetermined portion of a

single cross-examination,” although it was the cross-examination of his own client.

647 F.3d at 624. The “total cross-examination was fairly short, spanning only 26

pages of trial transcript” and “he objected near the end of [it],” leading the Sixth

Circuit to conclude that “Muniz’s lawyer therefore must have only been asleep for

a brief period.” Id. Distinguishing cases like Tippins where counsel had slept for

substantial portions of the trial, the court held that a presumption of prejudice

should not apply in that case. Id.

3. The Relationship of the Cronic Exception and the Substantial Portion of Trial Exception 68 Case: 12-15093 Date Filed: 04/26/2017 Page: 69 of 281

When counsel is not consciously present — either because he is asleep or

physically absent –– throughout an entire discrete, critical stage of a criminal

proceeding, Cronic requires that prejudice be presumed. And as we have already

explained, see supra at 27–32, a critical stage is either a self-contained proceeding

or a discrete and separately identifiable piece of one. See, e.g., Iowa v. Tovar, 541

U.S. 77, 87, 124 S. Ct. 1379, 1387 (2004) (plea hearing); Gardner, 430 U.S. at 358,

97 S. Ct. at 1204–05 (sentence hearing); Gilbert, 388 U.S. at 272–74, 87 S. Ct. at

1956–57 (post-indictment pretrial lineup); White, 373 U.S. at 59–60, 83 S. Ct. at

1051 (preliminary hearing); Hamilton, 368 U.S. at 54, 82 S. Ct. at 158–59

(arraignment). We believe that where counsel’s absence does not extend

throughout an entire critical stage, such as the trial or all of the taking of testimony,

the more appropriate test or standard is whether counsel missed a substantial

portion of it. The sleeping lawyer cases illustrate the use of that standard, but it is

also appropriate for physical absences during part of a trial. As at least three

circuits have noted, for Sixth Amendment presumption of prejudice purposes cases

involving sleeping and physically absent counsel should be subject to the same

standard for determining whether to presume prejudice or allow the government an

opportunity to show the lack of it beyond a reasonable doubt. See Burdine, 262

F.3d at 349; DiTommaso, 817 F.2d at 216; Javor, 724 F.2d at 834. We agree.

69 Case: 12-15093 Date Filed: 04/26/2017 Page: 70 of 281

Our conclusion that the absence of an attorney from the courtroom for an

insubstantial portion of the trial does not justify a presumption of prejudice under

the Cronic critical stage exception to the harmless error rule and that the substantial

portion of trial standard is the appropriate one for those circumstances is not

inconsistent with any Supreme Court decision. The Court has never held that the

testimony of one or some witnesses is a critical stage for Cronic purposes, much

less that a small part of the testimony of a single witness is. And the Court has

never held that prejudice should be presumed if defense counsel is absent from the

courtroom for an insubstantial portion of trial or that it should not be presumed if

counsel is absent for a substantial portion of the trial. The Supreme Court has

never addressed this issue.

The substantial portion of trial standard, and the four non-exclusive factors

we have discussed for applying it, not only explains the sleeping lawyer decisions

of our sister circuits, which explicitly apply that standard, it also explains the

Russell and Olden physical absence decisions that Roy relies on. In Russell,

counsel was absent for two days of his client’s trial for conspiracy to commit drug

trafficking and money laundering, missing the testimony of at least 18 prosecution

witnesses and the admission of “numerous exhibits,” all of which went to prove

guilt. See 205 F.3d at 769–70, 772. Obviously, counsel was absent for a

substantial portion of the trial. The Olden case involved counsel’s “excessive

70 Case: 12-15093 Date Filed: 04/26/2017 Page: 71 of 281

absence” during trial, including two days during which he missed incriminating

testimony of prosecution witnesses. See 224 F.3d at 566, 568–69. Again, that was

obviously a substantial portion of the trial. The Green case involved an absence of

at least an hour and forty minutes during which a key government witness testified,

and any determination of prejudice in that case would be complicated by the fact

that exactly what other parts of the trial counsel missed could not be determined.

809 F.2d at 1259–60, 1259 n.1. That is the fourth factor of the substantial portion

standard or test, and it weighs in favor of the court’s decision to presume prejudice

in Green.

We recognize that many of the decisions about partial absences succumb to

the tyranny of tags and tickets by putting the “Cronic error” or “critical stage” label

on their analysis and conclusions instead of, or in addition to, speaking in terms of

whether the attorney was out for a substantial portion of the trial. See, e.g., Ragin,

820 F.3d at 619–20, Burdine, 262 F.3d at 338, 341. Their analysis, however,

focuses on whether counsel was mentally or physically absent for a substantial

portion of the trial. As the Fourth Circuit has suggested, the substantial portion

determination should be made on a case-by-case basis considering, among other

factors, the length of time counsel was out, the proportion of the trial missed, and

the significance of what he missed. Ragin, 820 F.3d at 622 n.11.

71 Case: 12-15093 Date Filed: 04/26/2017 Page: 72 of 281

An additional factor to be considered is whether the reviewing court can

determine when counsel was out and what he missed. While there is usually no

way to tell exactly when a dozing lawyer was “out” during the trial, see, e.g.,

Burdine, 262 F.3d at 348 n.7, determining when and for how long counsel was

physically absent is usually less difficult. The Eighth Circuit underscored that

point in its Sweeney decision. See 766 F.3d at 861 (“The fact that the record

demonstrates precisely what [Sweeney’s counsel] missed while he was out of the

room — and the fact that his absence was so brief — allows the Court to

confidently assess whether Sweeney was harmed by [his counsel’s] absence.”)

(quoting with approval the district court) (alterations in original); see also Kaid,

502 F.3d at 44–47 (refusing to presume prejudice where court knew exactly what

counsel had missed when he returned to courtroom 20 minutes late after lunch).

This case shows that as well. We know exactly when Roy’s counsel was absent

and precisely which questions were asked and answers given during that time. See

supra at 6–7.

A final consideration that courts should keep in mind in applying the

substantial portion of the trial standard is that we are not talking about whether to

presume that there was no prejudice or harm. We are talking about whether to

presume that there was prejudice or harm, which would deny the government the

opportunity to persuade the court beyond a reasonable doubt that in light of all of

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the evidence in the case there was no prejudice or harm. Even without a

presumption of prejudice the defendant will be granted a new trial where there is

any reasonable doubt about his having been prejudiced or harmed. 16

4. Application of the Substantial Portion Standard to the Facts of this Case

As we have pointed out far more than once, Roy’s counsel missed only

seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting

recesses and jury deliberations), which is less than one-half of one percent of trial

time. He missed only 18 answers that were given by one of the government’s 13

witnesses who collectively gave a total of approximately 2,745 answers, meaning

he missed less than one percent of the total. And we know exactly which questions

and answers he missed. His physical absence was far more momentary and far less

substantial than any in the five cases that our sister circuits have decided under the

substantial portion standard. We have no trouble concluding that Roy’s counsel

did not miss a substantial portion of the trial.

16 The dissent does not face up to this important point, insisting that we are concluding “that directly inculpatory evidence introduced against a defendant in a single-defendant, single- counsel case while defense counsel is absent constitutes harmless trial error.” See Dissenting Op. at 245 (emphasis omitted). That is not the issue and it is not what we are holding. What we are holding is that the constitutional violation, like virtually all constitutional violations, is subject to analysis under the harmless error rule. It will lead to reversal unless the government carries its burden of proving that, when measured in light of all the evidence in the case, the violation was harmless beyond a reasonable doubt.

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No presumption of prejudice is due under that exception, just as none is due

under the Cronic critical stage exception. That prejudice is not to be presumed

does not mean that there was no constitutional violation, and it does not mean there

is no possibility of the convictions being reversed. It means, instead, that the

harmless error rule applies, and his convictions should be reversed unless the

government has carried its burden of showing the error was harmless beyond a

reasonable doubt. Which it has. See infra Part VI.

D. Roy’s Speculation Arguments and the Breadth of the Harmless Error Rule

Roy argues that the harmless error rule cannot apply because we cannot be

certain whether a brief absence of counsel during trial affected the verdict and

courts should never speculate about such things. The most that can be said for that

argument is that it is couched in good grammar and sensible syntax, but it is

unpinned from precedent and loose from logic.

To begin with, almost every determination about whether a deficiency, error,

or defect in counsel’s representation or some other aspect of the trial was

prejudicial or harmless requires “speculation” in the sense that Roy is using the

word. He is using that word to mean “deciding without knowing for certain.”

Consider what the Supreme Court said about that in the Sears capital case.

Defense counsel had found and presented some mitigating circumstance evidence

but not all that he could and should have. See Sears v. Upton, 561 U.S. 945, 945– 74 Case: 12-15093 Date Filed: 04/26/2017 Page: 75 of 281

46, 130 S. Ct. 3259, 3261 (2010). Some of the mitigating circumstance evidence

that counsel did not find and present might have had an adverse effect or it might

have had a net beneficial effect for the defense. See id. at 947–51, 130 S. Ct. at

3261–64. The state collateral court rejected Sears’ ineffective assistance claim

because he had failed to prove prejudice. Id. at 952, 130 S. Ct. at 3264–65.

In explaining its holding in that case, the state court said that “it is

impossible to know what effect a different mitigation theory would have had on the

jury.” Id. at 952, 130 S. Ct. at 3264 (alterations omitted). Its thinking was that a

court could only speculate about prejudice and speculation was not good enough so

why try. See id. at 946, 130 S. Ct. at 3261. Reversing the state court, the Supreme

Court emphatically rejected the notion that it requires too much speculation to

determine whether different evidence or a different theory would have affected a

jury’s decision in a given case. The Court explained that assessing whether the

prejudice prong of an ineffective assistance of counsel claim has been met, whether

there is a reasonable probability of a different result but for the error, “will

necessarily require a court to ‘speculate’” about the effect of the deficiency or

error. Id. at 956, 130 S. Ct. at 3266. But speculation in that broad sense, which

equates with the lack of certainty, is not impermissible; it is inevitable, the Court

noted. See id.

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It would be nice if there were a software program into which a trial record

could be scanned, an error could be input into the program, and the result would

pop up on screen as: “prejudicial” or “harmless.” That is not, however, the nature

of the enterprise. Prejudice inquiries require the exercise of a court’s best

judgment. All prejudice or harmlessness determinations require some measure of

estimation or of what the Supreme Court in Sears described as permissible

“speculation.” Every work day all across the country courts decide cases by

determining, to the best of their abilities, whether something that defense counsel

did, or did not do, prejudiced or harmed the defendant by adversely affecting the

result of the trial. If that is speculation, then speculation is rampant in the nation’s

courts.

We will not do what the Supreme Court reversed the state court for doing in

Sears and what Roy would have us do in this case, which is throw up our hands

and decline to make a determination about prejudice and harmlessness. See also

Sanders, 556 U.S. at 407, 129 S. Ct. at 1704–05 (“We have previously warned

against courts’ determining whether an error is harmless through the use of

mandatory presumptions and rigid rules rather than case-specific application of

judgment, based upon examination of the record.”). Certainty is illusory in human

affairs. If certainty about the lack of an error’s effect were required, virtually every

error would mandate reversal, and harmless error would be an endangered if not

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extinct doctrine. Yet the harmless error doctrine is alive and well. It serves vital

interests and promotes public respect for the criminal process. See Neder, 527

U.S. at 18, 119 S. Ct. at 1838; Agurs, 427 U.S. at 108, 96 S. Ct. at 2400; see also

Johnson, 520 U.S. at 470, 117 S. Ct. at 1550.

As the Supreme Court has repeatedly held, the vast majority of

constitutional errors that occur at a criminal trial, including Sixth Amendment

violations, should be examined for prejudicial effect and those errors do not require

reversal if they are harmless. And as we have mentioned, in Fulminante the Court

listed 16 of its decisions establishing this point, a list which refutes Roy’s position

16 times over:

Since this Court’s landmark decision in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (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, 752–54, 110 S. Ct. 1441, 1450–51 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792 (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 (1989) (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501–04, 107 S. Ct. 1918, 1921–23 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142, 2147 (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 (1986) (restriction on a defendant’s right to 77 Case: 12-15093 Date Filed: 04/26/2017 Page: 78 of 281

cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 115–18 & n.2, 104 S. Ct. 453, 454–55 & n.2 (1983) (denial of a defendant’s right to be present at trial); United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974 (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 (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 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232, 98 S. Ct. 458, 466 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231–32, 93 S. Ct. 1565, 1570–71 (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 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964)); Chambers v. Maroney, 399 U.S. 42, 52–53, 90 S. Ct. 1975, 1981–82 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1, 10–11, 90 S. Ct. 1999, 2003–04 (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 (citations reformatted). There is no good

reason why those 16 types of constitutional violations, some of which involve the

right to counsel, are subject to review for harmless error but the violation in this

case should not be. No less “speculation” is required to determine whether any of

those errors were prejudicial or harmless than is required to make the same

determination about counsel’s momentary absence in this case.

This point is evident from the actual holding in Fulminante itself. The issue

was whether erroneous admission of a coerced confession in violation of the Due 78 Case: 12-15093 Date Filed: 04/26/2017 Page: 79 of 281

Process Clause is reviewable for harmless error or should be presumed prejudicial.

Id. at 284–85, 111 S. Ct. at 1251. The Supreme Court recognized that “confessions

have [a] profound 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.” Id. at 296, 111 S. Ct. at 1257

(quotation marks omitted). Yet the Court still held that the constitutional error of

admitting a coerced confession is subject to harmless error review. Id. at 303, 111

S. Ct. at 1261. If the erroneous admission of a confession that may have had a

“profound impact on the jury” does not warrant a presumption of prejudice, neither

does the erroneous admission of inculpatory evidence presented during counsel’s

brief absence from the courtroom. See Satterwhite, 486 U.S. at 257, 108 S. Ct. at

1798 (observing that harmless error review is permitted “where the evil caused by

a Sixth Amendment violation is limited to the erroneous admission of particular

evidence at trial”).

E. The Lost Objections, Hampered Cross-Examination, and Lost Impeachment Arguments

1. Lost Opportunity to Object to Testimony

Roy contends that because of counsel’s seven-minute absence from the

courtroom he lost the opportunity to object to the questions that the prosecutor

asked while he was out of the courtroom, and that we cannot know if counsel

would have objected had he been present, so prejudice must be presumed. The

simple answer to that contention is that counsel did not lose the opportunity to 79 Case: 12-15093 Date Filed: 04/26/2017 Page: 80 of 281

object to those questions. He had the opportunity to object to them when he first

heard the same questions asked again immediately after he returned to the

courtroom. Because counsel did not object to any of those questions when he had

that opportunity to object, we know that he had no objection he wanted to make to

them. That proves there was no prejudice from a lost opportunity to object, if

proof is required.

The second independently adequate reason we reject Roy’s contention is that

the most a defendant suffers from a lost opportunity to object is that an objection

that should have been made was not made. That loss does not require a

presumption of prejudice because courts are fully capable of deciding, and

regularly do decide, if an attorney’s failure to object to testimony when he might

have objected is prejudicial or is harmless. There are plenty of reported decisions

doing just that and no decisions that we could find holding that courts are unable to

measure the prejudicial effect of an objection that was not made. See, e.g., Cox v.

McNeil, 638 F.3d 1356, 1364 (11th Cir. 2011) (determining whether counsel’s

failure to object to testimony of expert witness for the prosecution was prejudicial);

Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001) (same); Hays v.

Alabama, 85 F.3d 1492, 1495–96 (11th Cir. 1996) (determining whether counsel’s

failure to object to the introduction of uncharged criminal offenses was

prejudicial); Jones v. Dugger, 928 F.2d 1020, 1023, 1029 (11th Cir. 1991)

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(determining whether counsel’s failure to object to testimony of prosecution

witness was prejudicial); Howard v. Davis, 815 F.2d 1429, 1432 (11th Cir. 1987)

(determining whether counsel’s failure to object to psychiatrist’s testimony was

prejudicial); Cape v. Francis, 741 F.2d 1287, 1300 (11th Cir. 1984) (same).

As those and many other decisions show, there is nothing unusual — or

unusually difficult — about determining whether a failure to object, or a lost

opportunity to object, to testimony was prejudicial or harmless. In this case the

inquiry is particularly easy because the same questions that were asked in

counsel’s absence were repeated in his presence after he returned to the courtroom,

and he made not one objection to any of them.

Faced with all of those decisions in which courts have gauged the prejudicial

effect, if any, of an attorney’s failure to object to testimony, the dissent laments

that: “I am not so sure that a lost opportunity to object is the same thing as the

failure to object –– or so easily quantifiable. It seems to me that a lost opportunity

to object is an altogether different problem, one that requires speculation to

resolve.” Dissenting Op. at 235 n.5. But the dissent never tells us why gauging

prejudice from a lost opportunity to object is “an altogether different problem”

from gauging prejudice from an objection that counsel had an opportunity to make

but did not. The dissent gives no explanation why the difficulty in determining if

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the absence of an objection was prejudicial varies depending on the reason there

was no objection. No explanation is given because none exists.

The harm, if any, caused by the absence of an objection is the same

regardless of whether the reason there was no objection is that counsel was absent,

or he was distracted, or he was just negligent. Regardless of the reason there was

no objection, the jury hears the same testimony and the effect of that testimony is

the same. When it comes to an objection that was not made, prejudice is prejudice

and harmlessness is harmlessness. The ability of courts to gauge the effect of an

objection not being made is the same regardless of why it was not made. Identical

cases, involving identical evidence that was admitted without objection, should be

treated the same regardless of the reason there was no objection, and where the

lack of an objection was harmless the judgment should not be set aside.17

2. Hampered Cross-Examination and Lost Opportunity to Assert Defenses 17 In support of its position the dissent cites White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963). That case involved the introduction at trial of the guilty plea that the defendant had entered during a preliminary hearing without representation of counsel. Id. at 59–60, 83 S. Ct. at 1051. The Supreme Court held that a preliminary hearing where a defendant pleads guilty is a critical stage of a trial. Id. Roy was not completely denied counsel throughout a critical stage of the trial, such as a preliminary hearing, and he did not enter a guilty plea while he was without counsel. Entry of a guilty plea by the defendant is not equivalent to the absence of an objection to testimony. Cf. Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (“A guilty plea . . . is an event of signal significance in a criminal proceeding.”) (citation omitted).

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Roy also contends that we must presume prejudice because his counsel’s

absence during seven minutes of Deputy Longson’s testimony may have hampered

counsel’s cross-examination, or may have caused counsel not to assert some

defense, or may have prevented counsel from presenting some evidence to rebut

the testimony that came in during those seven minutes. But courts regularly assess

whether a defendant has suffered prejudice from foregone cross-examination,

foregone defenses, and foregone evidence. See, e.g., Hinton v. Alabama, 571 U.S.

___, 134 S. Ct. 1081, 1088–90 (2014) (remanding for 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, 562

U.S. 86, 110–12, 131 S. Ct. 770, 790–92 (2011) (determining whether petitioner

was prejudiced by counsel’s failure to present expert testimony on serology,

pathology, and blood spatter patterns); Roberts v. Comm’r, Ala. Dep’t of Corr.,

677 F.3d 1086, 1090–94 (11th Cir. 2012) (determining whether defendant suffered

prejudice from his attorney’s failure to raise insanity defense); Pietri v. Fla. Dep’t

of Corr., 641 F.3d 1276, 1280–84 (11th Cir. 2011) (determining whether defendant

suffered prejudice from his attorneys’ failure to raise voluntary intoxication

defense); 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). 83 Case: 12-15093 Date Filed: 04/26/2017 Page: 84 of 281

This kind of prejudice inquiry is old hat for courts. We do it often, without

protesting that it is too difficult or too much trouble. It is part of our judicial duty.

And again, it is simple to do in this case because the same questions counsel

missed were repeated after he came back into the courtroom. We know what

objections he wanted to make to those questions from the objections he made to

them when they were asked in his presence: none.

3. Lost Opportunity to Impeach

Roy also complains that because of counsel’s brief absence from the

courtroom he did not hear Deputy Longson mistakenly testify that the images of

L.B. were taken on March 10, 2005 instead of March 11, 2006. As we point out

elsewhere, the difference is immaterial because L.B. was a minor (under 18 years

of age) on both dates (she was 15 years old on the earlier date and 16 years old on

the later date). See supra at 7 n.1; infra at 111–113. And there was a mountain of

other evidence proving beyond a reasonable doubt Roy’s guilt of the charges to

which those images of L.B. related. See infra at 112–113.

Roy does not dispute that the victim was a minor regardless of which date

for that particular file is used, but instead argues that if counsel had been present

and had heard Longson’s slip up about the date, he could have used that mistake in

an attempt to impeach Longson’s testimony; and because he lost the opportunity to

impeach, prejudice should be irrebuttably presumed. The problem for Roy is that

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courts are fully capable of deciding, and regularly do decide, if an attorney’s

failure to impeach a prosecution witness with prior inconsistent testimony or other

evidence is prejudicial or harmless. There are legions of decisions doing just that.

See, e.g., Strickler v. Greene, 527 U.S. 263, 289–96, 119 S. Ct. 1936, 1952–55

(1999) (determining that petitioner was not prejudiced by loss of opportunity to use

withheld documents to impeach a key prosecution witness); Barwick v. Sec’y, Fla.

Dep’t of Corr., 794 F.3d 1239, 1251–53 (11th Cir. 2015) (denying habeas relief in

a capital case because the petitioner had not shown prejudice from his counsel’s

failure to use a prosecution witness’ prior inconsistent testimony in another

proceeding to impeach her); Fugate v. Head, 261 F.3d 1206, 1208, 1220 (11th Cir.

2001) (determining that petitioner had not shown prejudice from his attorney’s

failure to impeach the testimony of the sole eyewitness to the murder with his prior

inconsistent statement to police); Nixon v. Newsome, 888 F.2d 112, 116–17 (11th

Cir. 1989) (determining, after “[c]onsidering all the circumstances,” that petitioner

had been prejudiced by his counsel’s failure to impeach the key prosecution

witness with her prior inconsistent testimony); Jones v. Butler, 778 F.3d 575, 584–

86 (7th Cir. 2015) (denying habeas relief on a claim involving counsel’s failure to

impeach the testimony of a prosecution witness because “[w]e cannot say that [the

witness’] testimony would have altered the outcome even if the impeachment had

been perfected”); United States v. Travillion, 759 F.3d 281, 290–93, 299 (3d Cir.

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2014) (denying relief on a claim involving counsel’s failure to use a prosecution

witness’ contradictory statements from an earlier trial to impeach him because the

collective evidence against the petitioner showed he was not prejudiced by that

failure, and observing that “[t]he right to a fair trial does not translate into the right

to a perfect trial”); United States v. Orr, 636 F.3d 944, 951–54 (8th Cir. 2011)

(denying relief on a claim involving counsel’s failure to impeach a prosecution

witness with her cooperation agreement and her prior inconsistent statements

because, even though counsel could have “eroded [her] credibility in the jury’s

eyes by impeaching [her],” in view of the other evidence of guilt “there is not a

reasonable probability that [the] impeachment would have manufactured

reasonable doubt in the jurors’ minds”); Moore v. Marr, 254 F.3d 1235, 1237–38,

1240–41 (10th Cir. 2001) (denying habeas relief on claim involving “counsel’s

failure to impeach a key prosecution witness” because even if “[the witness] had

been impeached we cannot conclude that the outcome would have been different”).

All of those decisions, and more like them, foreclose Roy’s argument that

prejudice should be presumed on the theory that courts are not capable of

determining whether the failure to use a particular piece of evidence to impeach

was prejudicial or instead was harmless. Courts can and do make that

determination if a failure to impeach resulted from counsel error. Yet the dissent

worries that courts are somehow not capable of making exactly the same

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determination if the failure to impeach occurred because counsel was unaware of

the testimony or other evidence that could have been used to impeach. See

Dissenting Op. at 235 & n.5 (“Lost opportunities matter. . . . And further, here, it

was a lost opportunity to impeach –– the effects of which could have pervaded the

witness’s entire testimony.”).

The dissent never explains why the reason that impeachment did not occur

matters in gauging the prejudicial effect, if any, of the unused impeachment. What

we said earlier about why a failure to object does not affect a court’s ability to

gauge prejudice applies with equal force to a failure to impeach. Because the

impeachment evidence the jury does not hear is the same regardless of the reason it

does not hear that evidence, the effect of the jury not hearing that evidence is the

same. It follows that the court’s ability to gauge the effect of the jury not hearing

impeachment evidence is the same as well. What matters is the prejudicial or

harmless effect of the lack of impeachment, and all of the decisions we have just

cited establish that courts are fully capable of gauging that effect and regularly do

so.

Faced with all of those decisions, the dissent simply disagrees, insisting that

“[l]ost opportunities matter,” and are all that matter, when it comes to a failure to

impeach, and if impeachment does not occur because of a lost opportunity –– as

distinguished from an opportunity that counsel had but failed to take advantage

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of –– prejudice cannot be measured and must be presumed. See Dissenting Op. at

230, 234–240. The distinction the dissent would have us make has no logical

basis, which coincides with the fact that it is foreclosed by at least three decades of

binding precedent.

The Supreme Court and this Court have repeatedly held that when the

government suppresses impeachment evidence depriving the defense of the

opportunity to impeach a prosecution witness, prejudice is not to be presumed but

must be shown by the defendant. See, e.g., United States v. Bagley, 473 U.S. 667,

105 S. Ct. 3375 (1985). There is a different standard when the government

deliberately uses, or fails to correct, perjury that deprives the defendant of the

opportunity to use impeachment evidence, but even then there is no automatic

reversal and the harmless error rule applies. See Agurs, 427 U.S. at 103–04, 96

S. Ct. at 2397.

In the Bagley case the government had given the defense affidavits from its

“two principal witnesses” attesting that they had not been given any rewards or

promises of reward.18 Id. at 670, 105 S. Ct. at 3377. Even though the defense

18 Actually, as the dissenting opinion in Bagley points out, those “two principal witnesses” were the only witnesses against the defendant on the charges for which he was convicted. 473 U.S. at 685, 105 S. Ct. at 3385 (Marshall, J., joined by Brennan, J., dissenting); see also Bagley v. Lumpkin, 798 F.2d 1297, 1299 (9th Cir. 1986) (“At trial [those two witnesses] provided the only testimony on the controlled substance charges.”); Bagley, 473 U.S. at 671, 105 S. Ct. at 3377 (noting that the controlled substances charges were the only ones on which the defendant

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asked for information about any deals, promises, or inducements, the government

did not disclose that it had signed a “Contract for Purchase of Information and

Payment of Lump Sum Therefor” with the two witnesses. Id. at 669–71, 105 S. Ct.

at 3377–78. It had promised to pay the two witnesses as “vendors” an amount

described in the contract as “a sum commensurate with services and information

provided,” and they expected to be paid and were paid. Id. at 671–72, 105 S. Ct. at

3377–78. The government’s failure to disclose that evidence to the defense

deprived it of the opportunity to impeach the two government witnesses by

showing their bias or interest. Id. at 676, 105 S. Ct. at 3380.

The Ninth Circuit set aside the conviction, holding that: “the government’s

failure to provide requested Brady information to Bagley so that he could

effectively cross-examine two important government witnesses requires an

automatic reversal.” Id. at 674, 105 S. Ct. at 3379 (quoting Bagley v. Lumpkin,

719 F.2d 1462, 1464 (9th Cir. 1983)). The Supreme Court rejected the Ninth

Circuit’s automatic reversal rule and reversed its judgment. In doing so, the Court

acknowledged that impeachment evidence is covered by the Brady rule because it

is evidence favorable to the accused that “if disclosed and used effectively . . . may

was convicted). And there was no evidence to corroborate the testimony of those two witnesses. Lumpkin, 798 F.2d at 1299 n.1.

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make the difference between conviction and acquittal.” Id. at 676, 105 S. Ct. at

3380. And the Court recognized that the “possibility of a reward gave [the two

witnesses] a direct, personal stake in [Bagley’s] conviction.” Id. at 683, 105 S. Ct.

at 3384. Not only that but, as the Court pointed out, “the natural effect” of the

affidavits that the government did give the defense “would be misleadingly to

induce defense counsel to believe that [the two witnesses] provided the information

in the affidavits, and ultimately their testimony at trial recounting the same

information, without any ‘inducements.’” Id. at 684, 105 S. Ct. at 3384.

Even with all of that in the case, the Supreme Court rejected an automatic

reversal rule. It held, instead, that when the government deprives a defendant of

the opportunity to impeach a witness by a misleading failure to disclose evidence

that could have been used for that purpose, the conviction is to be set aside “only if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

Id. at 682, 105 S. Ct. at 3383 (borrowing the Strickland prejudice standard). The

requirement of prejudice, the Court explained, is “[c]onsistent with our overriding

concern with the justice of the finding of guilt.” Id. at 678, 682, 105 S. Ct. at 3381,

3383 (quotation marks omitted).

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The Bagley rule is still in full force and effect. Its requirement that a

defendant who has been deprived by the government of an opportunity to impeach

a witness against him must prove prejudice in order to obtain relief has been

reiterated and applied in many decisions. See, e.g., Strickler v. Greene, 527 U.S.

263, 273–75, 289–96, 119 S. Ct. 1936, 1944–45, 1952–55 (1999) (holding that a

defendant deprived of an opportunity to impeach an eyewitness by the

government’s failure to disclose documents “that cast serious doubt” on

significant portions of her testimony was not entitled to relief, because he “had not

shown that there is a reasonable probability that his conviction or [death] sentence

would have been different had these materials been disclosed”); Banks v. Dretke,

540 U.S. 668, 691, 124 S. Ct. 1256, 1272 (2004) (reiterating and applying, in a

case involving the prosecution’s failure to disclose impeachment evidence,

Bagley’s holding that an essential component of a Brady claim is that “prejudice

must have ensued”) (quotation marks omitted); Gissendaner v. Seaboldt, 735 F.3d

1311, 1322 (11th Cir. 2013) (affirming the denial of habeas relief in a capital case

where “[t]he state habeas court reasonably found that further impeachment of [the

prosecution’s key witness] based on the undisclosed statements contained in the

prosecution team’s notes would not have created a reasonable probability of a

different result in either phase of the trial”); Boyd v. Comm’r, Ala. Dep’t of Corr.,

697 F.3d 1320, 1334–35 (11th Cir. 2012) (affirming the denial of habeas relief in a

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capital case where the prosecution failed to disclose “statements of co-defendants

and agreements with defense witnesses, which would have cast doubt on the

prosecution’s case while bolstering [the] defense,” because of a failure “to show ‘a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different’”) (quoting Bagley, 473 U.S. at

682, 105 S. Ct. at 3383); Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271,

1292–94 (11th Cir. 2012) (affirming the denial of habeas relief in a capital case

because it is not “reasonably probable that a different outcome would have resulted

if the government had disclosed” impeachment evidence).

There is even more precedent foreclosing the dissent’s position. The

Supreme Court has not only rejected a presumption of prejudice/automatic reversal

rule where the government deprives the defense of an opportunity to impeach by

failing to disclose evidence, it has also rejected such a rule when the government

deprives the defense of that opportunity by using perjured testimony or failing to

correct what it knows is false testimony. Even in those extreme circumstances, the

defendant is not entitled to have his conviction set aside if the government shows

that the false testimony was harmless beyond a reasonable doubt. See Agurs, 427

U.S. at 97, 103, 96 S. Ct. at 2397 (“[T]he Court has consistently held that a

conviction obtained by the knowing use of perjured testimony is fundamentally

unfair, and must be set aside if there is any reasonable likelihood that the false

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testimony could have affected the judgment of the jury.”) (footnotes omitted);

Bagley, 473 U.S. at 678–79, 105 S. Ct. at 3381–82 (clarifying or modifying the

Agurs standard to mean that the use of false testimony is material and requires

relief “unless failure to disclose it would be harmless beyond a reasonable doubt”)

So this is where the law is on the subject of the defense being deprived of an

opportunity to impeach a government witness, including a key witness: Even

when the loss of the opportunity to impeach results from the government’s failure

to disclose evidence, there is no automatic reversal. The conviction stands unless

the defendant can show prejudice; he must show that there is a reasonable

probability of a different result if the evidence had been disclosed. And even when

the loss of opportunity to impeach involves the government’s deliberate use of

perjured testimony or failure to correct perjured testimony, there is no automatic

reversal. The conviction still stands if the government shows that the lost

opportunity to impeach caused by its misconduct was harmless beyond a

reasonable doubt.

Given that settled law, what sense would it make to hold, as the dissent

urges, that when the defendant loses an opportunity to impeach because his

attorney was briefly out of the courtroom, reversal is automatic and the harmless

error rule does not apply? Why should relief be easier to obtain in those

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circumstances, which are not the fault of the government, than when the loss of

opportunity to impeach involves the government’s deliberate use of false

testimony, which is “prosecutorial misconduct and, more importantly, involves ‘a

corruption of the truth-seeking function of the trial process’”? Bagley, 473 U.S. at

680, 105 S. Ct. at 3382 (quoting Agurs, 427 U.S. at 104, 96 S. Ct. at 2397). The

answer, of course, is that it should not be easier to obtain relief when the lost

opportunity to impeach does not result from serious government misconduct than

when it does. The harmless error rule should, and does, apply in both

circumstances.

4. The Fingerprint Hypothetical

The dissent poses the hypothetical of a homicide trial in which counsel is

gone for one minute during which time a government witness testifies that the

fingerprint on the murder weapon is the defendant’s. The dissent argues that “even

if the testimony is repeated and subjected to cross-examination when defense

counsel returns, there is no way to measure how much the initial opinion

influenced the jury’s consideration of the defendant’s guilt.” Dissenting Op. at

252. “Therein,” says the dissent, “lies the problem with applying a harmless-error

analysis to an absence of counsel during the admission of inculpatory evidence.”

Id. at 253. No, not really. What actually lies within that hypothetical, or within

variations of it, is proof that the dissent’s position is wrong and that harmless error

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analysis can be applied to temporary absences of counsel during the admission of

inculpatory evidence.

The dissent never explains why the determination of prejudice or

harmlessness from the fingerprint evidence in that hypothetical case should be

different from exactly the same determination in cases involving exactly the same

fingerprint evidence admitted as the result of other constitutional violations. In

similar situations involving the admission of incriminating evidence brought about

by different constitutional violations, the law requires that courts gauge the

prejudicial or harmless impact of the evidence, and there is no reason for not doing

that here. The ability of courts to determine the prejudicial or harmless effect of

evidence does not depend on the nature of the error involving its admission, a point

that variations of the hypothetical will demonstrate.

Let the dissent’s hypothetical be Scenario One. Scenario Two is exactly the

same trial and evidence. Except in this scenario the testimony about the fingerprint

on the murder weapon is inadmissible but comes into evidence anyway because

defense counsel negligently fails to object even though he is present at all times. It

is beyond dispute that in those circumstances reversal is not automatic but occurs

only if the defendant can show a reasonable probability of a different result if

counsel had objected as all reasonable attorneys would have. See Strickland, 466

U.S. at 691, 694, 104 S. Ct. at 2066, 2068; see also Bates v. Sec’y, Fla. Dep’t of

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Corr., 768 F.3d 1278, 1300 n.9 (11th Cir. 2014) (holding that defense counsel’s

failure to object to testimony did not warrant a new trial because there was no

prejudice from admission of the testimony); Dorsey v. Chapman, 262 F.3d 1181,

1186 (11th Cir. 2001) (same). The law requires that the district court, and then we

as a reviewing court, determine whether the admission of that evidence in Scenario

Two, which is the same evidence as in the dissent’s hypothetical, was prejudicial.

We could not, as the dissent suggests we should, simply quit the task by

proclaiming that “there is no way to measure how much the [admission of the

evidence] influenced the jury’s consideration of the defendant’s guilt.” Dissenting

Op. at 252.

Scenario Three is also the same trial and evidence. Except that counsel, who

is present at all times, objects to the admission of the evidence about the fingerprint

on the murder weapon because it was obtained in violation of the Fourth

Amendment, but the judge erroneously admits the evidence when he should have

excluded it. Everyone agrees that the error in admitting evidence seized in

violation of the Fourth Amendment is subject to the harmless error rule. See

Chambers v. Maroney, 399 U.S. 42, 52–53, 90 S. Ct. 1975, 1982 (1970); see also

Whiteley v. Warden, 401 U.S. 560, 569 n.13, 91 S. Ct. 1031, 1037 n.13 (1971)

(finding Fourth Amendment violation not to have been harmless). The law

requires that the district court, and then we as a reviewing court, determine whether

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the admission of the fingerprint evidence, which is the same evidence as in the

dissent’s hypothetical, was harmless beyond a reasonable doubt. We could not, as

the dissent suggests we should, simply quit the task by proclaiming that “there is

no way to measure how much the [admission of the evidence] influenced the jury’s

consideration of the defendant’s guilt.” See Dissenting Op. at 252. The Supreme

Court did not do that in Chambers or Whiteley.

Scenario Four is, once again, the same trial and evidence. Except the

evidence about the fingerprint on the murder weapon is admitted because with the

government’s knowledge one of its witnesses gives false testimony that prevents

counsel, who is present at all times, from discovering a Fourth Amendment

violation that would have caused the court to exclude the evidence. The Supreme

Court has held that even such a serious error involving prosecutorial misconduct

and corruption of the truth-seeking function of the trial is nonetheless subject to the

harmless error rule. See Bagley, 473 U.S. at 678–80, 105 S. Ct. at 3381–82;

Agurs, 427 U.S. at 103–04, 96 S. Ct. at 2397. The district court, and then we as a

reviewing court, would have to determine whether the admission of the evidence

was harmless beyond a reasonable doubt. We could not, as the dissent suggests we

should, simply quit the task by proclaiming that “there is no way to measure how

much the [admission of the evidence] influenced the jury’s consideration of the

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defendant’s guilt.” Dissenting Op. at 252. The Supreme Court did not do that in

Bagley and Agurs.

The dissent believes that its fingerprint hypothetical shows “the problem

with applying a harmless-error analysis to an absence of counsel during the

admission of inculpatory evidence.” Id. at 253. What the fingerprint hypotheticals

actually show is why prejudice should not be presumed. The law is clear that if the

hypothetical fingerprint evidence came in because of counsel’s neglect, or because

of a Fourth Amendment violation, or because of prosecutorial misconduct, we

would not presume prejudice or automatically reverse the conviction. We would

apply the harmless error rule if evidence came in because of a Fourth Amendment

violation or because of prosecutorial misconduct, and we would require the

defendant to show prejudice if the evidence came in because of trial counsel’s

neglect. It would be anomalous to presume prejudice and not inquire into

harmlessness if exactly the same fingerprint evidence came in while counsel was

briefly outside the courtroom.

5. The Lost Opportunity to Observe Witnesses and Constantly Monitor the Faces of Jurors Argument

The dissent takes the position that if, during the presentation of any

inculpatory testimony, defense counsel cannot observe the witness’ demeanor and

the jurors’ facial expressions, irremediable error has been committed and reversal

is automatic. See Dissenting Op. at 232–233, 238–240. The conviction must be 98 Case: 12-15093 Date Filed: 04/26/2017 Page: 99 of 281

reversed, the dissent insists, even if the testimony is repeated in counsel’s presence

because by then “the element of surprise was gone,” id. at 232–233, and counsel

did not observe the witness’ demeanor and the jurors’ faces “in the first instance.”

Id. at 238.

In support of its proposition that in order to have any hope of rendering

effective assistance an attorney must be able to observe a witness’ demeanor

throughout his testimony, the dissent cites decisions about the value of factfinders

being able to observe witness demeanor (although none of the decisions say that

the factfinder must do it continuously). Id. at 232–234 (citing Anderson v.

Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985), Dyer v.

MacDougall, 201 F.2d 265, 268–69 (2d Cir. 1952), and United States v. Mejia, 69

F.3d 309, 315 (9th Cir. 1995)). But defense counsel is not a factfinder. He is an

advocate. Unlike jurors, or judges during bench trials, defense counsel is not

charged with the responsibility of finding the facts from the testimony presented.

Counsel’s role, instead, is to represent his client zealously within the bounds of the

law before, during, and after the trial regardless of what he personally believes, or

knows, the facts to be.

The dissent presents no decisional authority for its position that in order to

render effective assistance trial counsel must watch the faces (and body language?)

of jurors as testimony is presented throughout the trial. If the premises of the

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dissent’s position were accepted, while testimony is being taken counsel should not

look at any documents, or at his notes, or turn his head to confer with his client or

co-counsel lest he miss an opportunity to search for clues in the facial reactions

(including pupil dilation?) of the 12 jurors (plus some alternates). According to the

dissent, if counsel fails to observe the facial expressions and body language of all

of the jurors as each and every inculpatory answer is given by a prosecution

witness, “the element of surprise [is] gone and any initial reactions to the evidence

went with it.” Dissenting Op. at 233. The dissent tells us that all is lost and

permanently lost once the jurors’ fleeting facial expressions, or the lack of them,

vanish into the mists of time. We will never know what counsel might have done

in this case, the dissent conjectures, if only he had been able to divine from the

non-verbal cues of each and every juror what they all thought concerning that less

than one-half of one percent of the total trial testimony that they first heard while

counsel was out.

Which leads to a question. The testimony that the jurors heard while

counsel was not there to study their faces included the fact that six of the images

found on his client’s computer were of a young female nude and “bound to a table

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

with silver duct tape.” Is there really any doubt what a reasonable juror’s reaction

to the facts contained in that testimony would be? Would any reasonable counsel

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have to see the jurors’ faces, the first time that testimony comes from the witness

box, to know how they felt about it?

And, while we are on the subject, unlike Janus, most lawyers cannot look in

two different directions at once. How is a lawyer supposed to keep his eyes trained

on the witness giving testimony lest he miss the opportunity to gauge the witness’

credibility, and at the same time never stop watching the faces of a dozen or more

men and women in the jury box lest he miss a chance to gauge their reaction to that

testimony? Which opportunity should he lose forever? When, if ever, can he look

down at his notes, or turn his head to confer with his client or co-counsel? And

must we bar attorneys who are blind from representing clients in the courtroom?

The dissent does not say. 19

We conclude that the brief absence of counsel from the courtroom during the

testimony of Deputy Longson was not structural error, prejudice is not to be

presumed, and the harmless error rule applies. We turn now to actually applying

the harmless error rule to the facts of this case.

19 It is interesting to note that the dissent’s position that to have any hope of rendering effective assistance counsel must constantly scrutinize the faces and body language of witnesses and all of the jurors is inconsistent with the dissent’s position that counsel absences during multiple defendant trials may be okay because the attorney for a co-defendant can fill in for a defendant’s own counsel. A counsel who is out of the courtroom cannot see the faces or body language of witnesses or jurors regardless of what some other attorney who is in the courtroom is doing.

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VI. Why the Error Was Harmless

In applying the harmless error rule, as we do here, we review the

constitutional error to determine whether it was “harmless beyond a reasonable

doubt.” Chapman, 386 U.S. at 24, 87 S. Ct. at 828.

A. As to Count 1 (Attempted Child Enticement)

The brief absence of counsel from the courtroom was harmless beyond a

reasonable doubt as to Count 1 of Roy’s conviction. See id. We know that it was

because the testimony that occurred during counsel’s absence was not about the

Count 1 charge of attempted child enticement in violation of 18 U.S.C. § 2422(b).

It was, instead, solely about the Count 2–5 charges of knowingly possessing “any

visual depiction” of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B),

(b)(2).

The Count 1 charge is legally distinct from the Count 2–5 charges, having

no element in common with them. The charge in Count 1 is also factually distinct

from the others because the child pornography that is charged in Counts 2–5 was

not even discovered until Roy’s house had been searched after he had already been

arrested on the attempted child enticement charge that is in the first count. And the

only testimony taken during the seven minutes that counsel was absent was about

the Count 2–5 charges of child pornography. No testimony or other evidence

about the Count 1 attempted child enticement charge was taken during that time.

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All of the evidence of Roy’s guilt on Count 1 was presented while defense counsel

was present in the courtroom; he missed not one word of it.

Roy argues that the six pornographic images of L.B. that were partially

discussed for the first time during his counsel’s brief absence, all of which were

part of the evidence of his guilt under Counts 2–5, were also relevant to Count 1.

It was relevant, he says, because he asserted an entrapment defense on Count 1,

and the government argued in its closing that the images of child pornography

discovered on Roy’s various electronic devices showed his proclivity or

predisposition for having sex with underage girls. There are two independently

adequate reasons why that theory of harm is unconvincing.

The first reason is that those same six pornographic images of L.B. were

discussed more and in much greater detail after counsel returned to the courtroom.

And those six images were admitted into evidence in counsel’s presence and

without objection only after they had been discussed more thoroughly following

counsel’s return to the courtroom. Anything that the missed testimony regarding

those six images proved was also proven by the lengthier testimony about the same

six images that counsel did not miss.

The other independently adequate reason why Roy’s possibility of prejudice

through proof of proclivity theory is unconvincing is that those six images of L.B.

that were first discussed while counsel was absent were only a fraction of the total

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number of pornographic still and video images of L.B. and of other underage girls

discussed and introduced during the trial. In addition to those six images of L.B.,

there were at least three other pornographic images of L.B. plus numerous

pornographic video files of her, all taken when she was underage, that were found

on Roy’s desktop computer. All of those other images of L.B. were the subject of

testimony and were introduced into evidence only after Roy’s counsel returned to

the courtroom, and all of that was done without any objection. Counting the

videos, the number of pornographic images of L.B. that were discussed only while

counsel was in the courtroom far outnumbered the ones of her discussed while he

was out (and again after he returned).

Roy’s desktop computer also contained multiple pornographic images of

underage girls other than L.B. All of those pornographic images of other minors

were testified about, and admitted into evidence, only while Roy’s counsel was

present; none of them was even mentioned during the brief time he was absent. In

addition, Deputy Longson also testified in the presence of Roy’s counsel about the

dozens of pornographic images, both of L.B. and of other underage girls, that he

had found on Roy’s laptop computer and Roy’s USB thumb drive and Roy’s

backup CD-ROM discs. Every single piece of that still image and video image

evidence of Roy’s crimes was admitted while his counsel was in the courtroom.

And it was all admitted without objection. Even without any of the initial

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testimony about the first six images of L.B. that were mentioned during counsel’s

brief absence, the jury was presented with overwhelming and irrefutable evidence

of Roy’s sexual interest in minor girls. His proclivity was beyond dispute.

Not only that, but when the AUSA argued against Roy’s entrapment defense

at closing, she did not tell the jury to consider only the six images of L.B. on the

desktop computer that Deputy Longson had first mentioned while defense counsel

was absent. Instead, she asked the jury to consider all of Roy’s images and videos

of child pornography, including those Roy had on the three electronic devices that

were not discussed at all until counsel returned to the courtroom. She said that

Roy’s intent in traveling to the rendezvous with the fictional daughter and mother

that led to the Count 1 charge stemmed from his sexual interest in underage girls,

which could be seen from the fact that a couple of days before “he’s accessing his

[L.B.] folder on the laptop.” (Emphasis added.) The L.B. image folder on the

laptop was not mentioned while counsel was out of the courtroom. And the AUSA

argued later: “We know he’s viewing child pornography a few days before on his

laptop, ladies and gentlemen. He’s got backup CDs of child pornography. He’s

got thumb drives of child pornography. He’s got desktops of child pornography.”

(Emphasis added.) So the argument referred to child pornography on all four

electronic devices specified in Counts 2–5, including that on the three devices

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(laptop, CD-ROM discs, and thumb drives) that had not been mentioned while

counsel was out of the courtroom.

For all of these reasons, the brief absence of Roy’s counsel, during which the

Count 1 attempted child enticement charge was not mentioned, was harmless

beyond a reasonable doubt as to the conviction on that count.

B. As to Counts 2–5 (Possession of Child Pornography)

For two primary reasons, we know that the error in this case was also

harmless beyond a reasonable doubt as to Counts 2–5, the charges of possession of

child pornography. First, overwhelming evidence, all of which came in while

counsel was present, proved the charges against Roy that were the subject of

Deputy Longson’s testimony during counsel’s brief absence. And second, the

testimony that Deputy Longson gave during the seven minutes that Roy’s counsel

was absent was repeated after he returned to the courtroom.

1. All of the Other Evidence of Child Pornography

The first reason that we know counsel’s seven-minute absence was harmless

is that the testimony he missed concerned only some of the child pornography

featuring L.B. and none of the child pornography featuring other minors. Roy

could have, and beyond a reasonable doubt would have, been convicted of each of

the Count 2–5 possession of child pornography charges even if no image of L.B.

had ever been mentioned or indeed had ever even existed. That is because to

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convict him of the four child pornography possession counts, each of which

alleged that he possessed child pornography on a particular electronic storage

device, all the prosecution had to show was that he had at least one image of child

pornography on each of the four devices. See 18 U.S.C. § 2252(a)(4)(B). It

proved much more than that.

The evidence taken while Roy’s counsel was present in the courtroom

proved beyond a reasonable doubt that Roy had multiple images and videos of

child pornography on each of the four storage devices specified in Counts 2–5.

The unrefuted evidence proved that, as charged in Count 2, Roy had on his desktop

computer five separate pornographic images of minor children other than L.B. that

had been downloaded from the Internet.20 Those five images were more than

enough to prove Roy guilty beyond a reasonable doubt of the Count 2 charge. And

all of the evidence about those five pornographic images of other minors that were

on Roy’s desktop computer came in only while counsel was present in the

The evidence that was submitted while counsel was in the courtroom also

overwhelmingly proved that Roy possessed child pornography on his laptop

20 Roy also had three other still images and several videos taken of L.B., which were child pornography, stored on his desktop computer, but it is at least arguable that those images were first mentioned while Roy’s counsel was absent. We will assume as much and disregard the other images of L.B. on the desktop, because even if we don’t count them, the pornographic images of other children on the desktop proved that Roy was guilty of the Count 2 charge.

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computer (separate from his desktop computer), as charged in Count 3. On the

laptop, in addition to copies of some or all of the pornographic photos and videos

of the underage L.B., there was a folder called “Girls.” It is undisputed that the

“Girls” folder contained more than 220 images, all of which were introduced into

evidence and at least some of which were child pornography. In particular, Deputy

Longson testified about five images of child pornography from that laptop, which

were admitted into evidence from the “Girls” folder. Any one of those five

images, or any one of the other images of child pornography stored in the “Girls”

folder, or any one of the pornographic images or videos of L.B. on Roy’s laptop

computer, was enough to prove Roy guilty beyond a reasonable doubt of the Count

3 charge involving that device. And all of the evidence about the child

pornography on Roy’s laptop computer (including the evidence about the images

of L.B. on it) came in while counsel was present in the courtroom.

Count 4 charged Roy with possessing at least one depiction of child

pornography on a USB thumb drive. Along with copies of the pornographic

images and videos of the underage L.B., there were five images of child

pornography featuring minors other than L.B. that were admitted into evidence

from Roy’s USB thumb drive. Those five images alone were more than enough to

prove Roy guilty beyond a reasonable doubt of the Count 4 charge. And every bit

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of that evidence about the child pornography stored on Roy’s thumb drive came in

while counsel was present in the courtroom.

As to Count 5, Deputy Longson testified that the three CD-ROM discs that

were the subject of that charge “absolutely” contained child pornography,

including duplicate or backup copies of the L.B. videos and images along with

pornographic “images of . . . minors that are not” L.B. that were also on the laptop

and desktop computers. Doc. 141 at 154, 165. Those images of child pornography

were more than enough to prove Roy guilty beyond a reasonable doubt of the

Count 5 charges. And every bit of that evidence about the child pornography on

Roy’s compact discs came in while counsel was present in the courtroom.

Roy’s counsel was in the courtroom for the presentation of all of that

evidence proving Roy’s guilt of the Count 2–5 charges. He objected to none of it.

His sole comment during that testimony was to ask whether he could review

Government’s Exhibit 76, a 110-page compilation of the images from the “Girls”

folder, before it was admitted into evidence. Id. at 145. Beyond a reasonable

doubt, Roy’s counsel’s absence during seven minutes in which none of the

evidence we have recounted in this section was submitted did not harm him on the

Count 2–5 charges. It could not have.

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2. The Repetition of the Missed Testimony After Counsel Returned

The second, equally compelling reason that counsel’s absence was harmless

beyond a reasonable doubt on the Count 2–5 charges is that the facts covered in the

testimony that Deputy Longson gave while Roy’s counsel was out of the

courtroom were covered again soon after Roy’s counsel returned.

Longson testified in counsel’s absence about a folder called “2006-03-11”

he had found on Roy’s desktop computer. The folder was made by a user of the

computer and contained six pornographic images. See Doc. 141 at 106–07. He

testified that the photographic images had been taken with a “Kodak v530 zoom

digital camera” and that they showed a “nude white female who was bound to a

table by her feet with rope,” with her “head covered with an orange cloth which

was secured around her neck with silver duct tape.” Id. He also testified that he

had brought to court a disc containing videos of child pornography he found on

Roy’s computer and that he had made some screenshot images from those videos.

Id. at 107–08.

Then, after Roy’s counsel returned to the courtroom, Longson repeated the

testimony that he had given in counsel’s absence. He testified about those same

images again after counsel returned, and only then were they admitted into

evidence. See id. at 108 (images “were located and recovered from the desktop

computer”); id. at 109–10 (folder was stored under “user profile Alex”); id. at 110

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(images were located in a “file” named “2006-03-11” and showed a “white female

who is bound to a table by her feet with a . . . rope” and wearing “an orange hood

across her head with silver duct tape secured around the neck”); id. at 131 (the

camera that made the still images was a “Kodak v530 zoom digital camera”); id. at

119–21 (discussing the pornographic videos of the then-underage L.B. found on

Roy’s computer, and the still images Longson made from them).

Roy’s counsel did not object to the admission of any of those images of

child pornography. Nor did he object to any of the testimony describing their

discovery, their location, or their provenance. With a single exception discussed

below, every bit of inculpatory testimony that had been given during counsel’s

brief absence was repeated, and a lot more was added, after counsel returned. We

know that Roy was not prejudiced by counsel’s absence because the same evidence

would have come in even if those 18 questions and answers had never occurred in

his absence –– and it did come in after he returned. We know counsel would not

have made any objections to any of that testimony or evidence if he had been

present during the seven minutes immediately after the lunch break because he did

not object to the same testimony and evidence when it was repeated soon after he

returned to the courtroom. 21

21 Roy suggests that if counsel had been present to hear the 18 questions he missed, he could have objected to some of the questions as leading. That theory of prejudice utterly fails for two

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To be sure, as we have mentioned, there is one immaterial difference

between Longson’s testimony while Roy’s counsel was absent and his testimony

after Roy’s counsel came back. See supra at 7 n.1. While testifying during

counsel’s absence, Longson correctly identified the date on the “2006-03-11”

folder but incorrectly stated that the images in that folder were created “on March

the 10th, 2005, at 6:49 p.m.” Doc. 141 at 107. He repeated that assertion two

answers later, reiterating that those images were “created initially by the camera”

on “March the 10th of 2005 at 6:49 p.m.” Id. After Roy’s counsel returned,

Longson correctly testified that the images had been created on March 11, 2006,

which is what the date on the folder showed. See id. at 110–11.

Longson’s mistake during counsel’s absence did not prejudice Roy. It was

immaterial because there was no dispute that L.B. was born on May 9, 1989. That

means she was under the age of 18, and therefore a minor, on March 11, 2006

(when she was 16 years old) just as she was on March 10, 2005 (when she was 15

reasons. First, any competent lawyer can rephrase leading questions, and the transcript of the trial leaves no doubt that the AUSA in this case was competent. It also shows that on at least a dozen occasions during the trial when an objection for leading was sustained, the AUSA rephrased questions and succeeded in getting the testimony she wanted into evidence. Second, when many of the same questions were asked in defense counsel’s presence after he returned to the courtroom, they too were leading but counsel did not object. Roy cannot explain why his counsel did not object to the leading nature of questions asked after he returned to the courtroom but would have objected if he had been present when the same questions were asked in the same fashion earlier.

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years old). See 18 U.S.C. § 2252(a)(4)(B) (prohibiting knowing possession of

visual depictions of a “minor engaging in sexually explicit conduct”); id. § 2256(1)

(defining “minor” as “any person under the age of eighteen years”). A defendant

who possesses child pornography is just as guilty of the crime if the child is 16

years old as he is if the child is 15 years old. The defining line for the crime is the

18th birthday. And, in any event, the immaterial error was corrected in Longson’s

later testimony. 22

There is one other point to be made about the harmlessness of counsel’s

absence when Deputy Longson stated that L.B. was 15 when the pornographic

images of her in the “2006-03-11” folder were taken. The jury not only would

have convicted Roy regardless of whether it believed L.B. was 16 or 15 when

those particular pornographic images of her were taken, it also could and would

have convicted Roy even if it believed L.B. had been 18 or 80 when the images

were taken. If none of the images of L.B. existed, or even if L.B. herself never

existed, Roy’s guilt of the Count 2–5 charges would still have been proven by all

22 About Longson’s mistake in his initial testimony concerning the date those particular images were created, the dissent argues that “[t]he significance of such an error is particularly obvious” because Roy did not have any contact with L.B. until August of 2005, which was after the date that Longson mistakenly stated in his initial testimony. See Dissenting Op. at 235. All that fact makes “particularly obvious” is that the March 10, 2005 date that Longson initially stated was mistaken, which is something no one disputes. But neither does anyone dispute that if March 11, 2006 is the correct date, which the physical evidence and Longson’s later testimony prove, Roy committed the crime with which he is charged because L.B. was still a minor on that date and the images of her are pornographic.

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of the child pornography depicting children other than L.B. that was found on his

desktop computer, on his laptop computer, on his thumb drive, and on his three

backup CD-ROM discs. See supra Section VI.B.1.

C. The Problem Juror

In an attempt to get out from under the piles of evidence against him, Roy

argues that the jury’s inability to reach a verdict soon after deliberations began

establishes that the jury “did not find the evidence overwhelming,” and “may have

questioned” the government’s case. Not really.

Here is what the record shows. The jury retired to deliberate at 12:43 p.m.

on Thursday, June 14, 2012. At 6:30 p.m. that evening, the jury reported that it

was unable to reach a verdict. Roy’s counsel suggested an Allen charge. See

Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896). After

further discussion, though, and without an Allen charge being given, the jury

foreman reported that they would “like to recess for the night and try again in the

morning.” The court then gave the Allen charge anyway and let the jurors go

home for the night without further deliberations.

The problem the jury was having surfaced the next morning before

deliberations resumed. One of the jurors went to the courthouse early, sought out a

clerk, and complained about how the deliberations had been going. In the presence

of counsel for both sides, the judge questioned the juror. When the judge asked

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him if he wished to continue to deliberate, the juror said that given the way “the

verdict is being deliberate [sic] in the jury room, no sir.” When the judge asked

again, the juror stated: “Sir, I want to continue, but the way that it’s — the vulgar

way that it’s being done, foul way, whatever word you can use, that they are —

that is being used in the jury room to come to a verdict is — I think borders on

against the law.” When the judge explained to the juror that the choice was for

him to either rejoin the jury or the judge could remove him if he was unable to

continue, the juror said he wanted to consult with a lawyer. He explained that he

wanted a lawyer “to speak to, to see what rights I have as an American citizen,”

and “I need to know what my legal rights are when things happen within that jury

box that’s only known to the jurors but borders on a violation of the laws.”

After discussing it, the AUSA and Roy’s counsel agreed that they wanted

the problematic juror dismissed and both stated that they preferred to proceed with

the remaining 11 jurors instead of calling in the alternate juror and restarting

deliberations. Roy himself agreed to proceed with 11 jurors. The complaining

juror was removed from the jury, which resumed deliberations. Only 37 minutes

after the jury resumed deliberations that morning, it reached a verdict convicting

Roy of all five counts charged in the indictment.

This is not, as Roy asserts, the picture of a “deadlocked jury” wrestling with

the evidence. It is, instead, the picture of one juror who was disrupting the

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deliberations and whose statements and actions were troubling enough for both

sides to agree that he needed to be removed so that the jury could deliberate to a

verdict. Which is what the jury did soon after the problem juror was removed.

D. The Theory that the Jury Violated Its Oath and Disobeyed Its Instructions

Unable to point to any realistic possibility of prejudice from trial counsel’s

brief absence, the dissent proffers an unsubstantiated hunch that the reason the jury

convicted Roy of the crimes he committed is not because of all the unrefuted

evidence against him on each and every count, even though that massive amount of

unrefuted evidence would have convinced any reasonable jury of his guilt beyond

any doubt. Instead, the dissent’s alternate world view is that the jury may have

convicted Roy only because it noticed that his counsel was a few minutes late

getting back to the courtroom after one break during one of the six days of trial and

unreasonably held that against Roy. Or, posits the dissent, the jury may have

thought that the judge noticed counsel’s absence (even though there is nothing in

the record to indicate that he did) and unreasonably held against Roy the judge’s

failure to intervene on his behalf. See Dissenting Op. at 236–240.

There is nothing to indicate that the jury noticed the absence of Roy’s

counsel. More fundamentally, there is no basis whatever for assuming that if the

jury had noticed, it would have held counsel’s one momentary absence against

Roy, treating it as evidence of his guilt. The dissent implies that, if the jury noticed 116 Case: 12-15093 Date Filed: 04/26/2017 Page: 117 of 281

that defense counsel was absent, it may have concluded that counsel thought Roy

was so guilty there was no point in him being in the courtroom, or perhaps it

somehow may have done “irreparable damage to the jury’s perspective of defense

counsel.” Id. at 236. The answer to that conjecture run wild is that there is no

reason at all to think any reasonable juror would draw any adverse inferences, and

there are plenty of reasons to believe that a reasonable juror would not.

To begin with, the jury saw that counsel vigorously defended Roy during

99.6 percent of the trial, missing only seven minutes because he was late returning

to the courtroom on one of the many breaks that occurred during the six day trial.

The jury knew that defense counsel believed in his role as Roy’s advocate because

it saw and heard him tenaciously defend Roy in his opening statement, throughout

the trial, and in his closing argument. The jury saw and heard counsel cross-

examine nine government witnesses, including the one who was on the stand when

he returned to the courtroom; counsel cross-examined that witness for 45 pages of

the transcript. The jury saw and heard counsel call his own competing expert

witness to testify on Roy’s behalf. It saw and heard counsel object to questions

asked by the prosecutor and make a vigorous closing argument. Throughout the

trial, the jury saw and heard counsel, in Cronic terms, “subject the prosecution’s

case to meaningful adversarial testing,” Cronic, 466 U.S. at 659, 104 S. Ct. at

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2047. The jury could not reasonably have concluded that defense counsel did not

believe in what he was doing as Roy’s advocate.

The same is true of the dissent’s conjecture that the jury or jurors may have

noticed that the judge was aware of counsel’s brief absence and somehow inferred

from the judge’s inaction that he thought Roy was guilty. Dissenting Op. at 239.

There is not one whit of support for that theory in the record. There is nothing to

indicate that the judge knew counsel was absent during those seven minutes, nor is

there anything to indicate that, if he did, the jury somehow was aware that he did.

In fact, the record shows that the jury had good reason to believe the judge did not

notice counsel’s absence when court resumed. This is what the judge had

instructed the jury when court recessed at the end of the first day of trial:

We will get started Monday at 9:00 o’clock. So if you are unfamiliar with coming into the Fort Pierce area that time of day, I ask that you give yourself a few extra moments and get here before 9:00 o’clock, 8:45, 8:50 or so, so we can get started on time. If we are missing just one of us, you, me, the lawyers, we can’t get started. So in order to keep the case on track time-wise and [as a] courtesy to your fellow jurors, I would ask that you be here sometime before 9:00 o’clock so we can get started promptly at 9:00.

(Emphasis added.) Having been told by the judge on the first day that he would

not resume trial following a recess without the lawyers being present, the only

reasonable inference the jury could have drawn from the judge resuming the trial

without one of the attorneys being present following the lunch break on the second

day is that the judge did not realize the attorney wasn’t there.

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Nor is there any reason to believe, as the dissent conjectures, that if the

judge did notice counsel’s absence, and if the jury somehow knew he noticed it,

the jury would infer from the judge’s failure to act that he must have thought Roy

was guilty. If one is engaging in conjecture, it is just as likely the jury could have

inferred that the judge did not think that particular testimony required counsel’s

presence, or if it were required, the judge thought that the testimony could be

repeated in counsel’s presence, which is exactly what happened immediately after

counsel walked into the courtroom.

All of those reasons are enough to dispose of the dissent’s unsupported

theory of an illogical jury. But there is more reason to reject it. The standard oath

taken by every juror before a federal trial begins requires that the juror swear or

solemnly affirm that he or she “will well and truly try, and a true deliverance make

in, the case now on trial, and render a true verdict according to the law and the

evidence, so help you God” (emphasis added).23 The dissent’s position is that

instead of believing that the jurors adhered to their solemn oath to render their

verdict “according to the law and the evidence,” ample though the evidence was,

23 The Benchbook for United States District Court Judges states the oath as follows: “Do each of you solemnly swear [or affirm] that you will well and truly try, and a true deliverance make in, the case now on trial, and render a true verdict according to the law and the evidence, so help you God?” Federal Judicial Center, Benchbook for U.S. District Court Judges 269 (6th ed. 2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbook-US- District-Judges-6TH-FJC-MAR-2013-Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC- MAR-2013-Public.pdf.

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we should instead indulge the baseless assumption that the jurors disobeyed their

oath and convicted Roy because of what they may have imagined defense counsel

or the judge thought, assuming that the jurors noticed what there is nothing in the

record to indicate that they noticed.

And then there are the instructions the jury was given. After the jury was

sworn but before the trial began, the judge gave opening instructions that, among

other things, charged the jury that:

It will be your duty to find from the evidence what the facts are. You and you alone are the judges of the facts. You will then have to apply to those facts as the law, as the Court will give it to you, and you must follow that law whether you will agree with it or not.

Nothing the Court may say or do during the course of the trial is intended to indicate nor should be taken by you as an indication of what your verdict should be. At another place in those opening instructions, the judge reminded the jury that:

“You are to decide the case solely on the evidence presented here in the

courtroom.”

After all of the evidence was in, the court gave the jury closing instructions.

Near the beginning of those instructions, the court charged the jury that “Your

decision must be based only on the evidence presented here.” Later, the court

expounded on that:

As I said before, you must consider only the evidence that I have admitted in the case. Evidence includes the testimony of witnesses and the exhibits admitted. But anything the lawyers say is

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not evidence and isn’t binding on you. And you shouldn’t assume from anything that I’ve said that I have any opinion about any factual issue in this case. Except for my instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own decision about the facts. Your own recollection and interpretation of the evidence is what matters.

The court also went into detail explaining to the jury how it should go about

considering the evidence and deciding what weight to give particular evidence and

which witnesses to believe. The court instructed the jury on the elements of the

crimes and charged it that the defendant could be found guilty only if those

elements were proven beyond a reasonable doubt. The instructions could not have

been clearer that: “The Government must prove guilt beyond a reasonable doubt.

If it fails to do so, you must find the Defendant not guilty.”

It is impossible to reconcile the dissent’s theory that the jury may have based

its verdict on something other than the evidence admitted at trial and the law that

the judge instructed it on with the specific and detailed instructions that the jury

was given. The theory works only if we assume the jurors violated their oaths,

disobeyed their instructions, and acted in a lawless fashion. The law is that we

cannot assume that and must instead assume exactly the contrary.

More than 30 years ago the Supreme Court explained that

the crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed. 121 Case: 12-15093 Date Filed: 04/26/2017 Page: 122 of 281

Marshall v. Lonberger, 459 U.S. 422, 438 n.6, 103 S. Ct. 843, 853 n.6 (1983)

(quotation marks omitted). For that reason, the Supreme Court has repeatedly held

that we must presume that juries follow their instructions. See, e.g., Kansas v.

Carr, 577 U.S. __, 136 S. Ct. 633, 645 (2016) (“We presume the jury followed

these instructions . . . .”); Evans v. Michigan, 568 U.S. ___, 133 S. Ct. 1069, 1080

(2013) (“[A] jury is presumed to follow its instructions.”); Blueford v. Arkansas,

566 U.S. ___, 132 S. Ct. 2044, 2051 (2012) (same); Weeks v. Angelone, 528 U.S.

225, 234, 120 S. Ct. 727, 733 (2000) (same); Zafiro v. United States, 506 U.S. 534,

540, 113 S. Ct. 933, 939 (1993) (“[J]uries are presumed to follow their

instructions.”); CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841, 129 S. Ct. 2139,

2141 (2009) (“[A]s in all cases, juries are presumed to follow the court’s

instructions.”); United States v. Olano, 507 U.S. 725, 740, 113 S. Ct. 1770, 1781

(1993) (“[We] presum[e] that jurors, conscious of the gravity of their task, attend

closely the particular language of the trial court’s instructions in a criminal case

and strive to understand, make sense of, and follow the instructions given them.”);

Richardson v. Marsh, 481 U.S. 200, 206–07, 107 S. Ct. 1702, 1707 (1987) (“This

accords with the almost invariable assumption of the law that jurors follow their

instructions, which we have applied in many varying contexts.”) (citation omitted);

Tennessee v. Street, 471 U.S. 409, 415, 105 S. Ct. 2078, 2082 (1985) (stating that

“the question is reduced to whether, in light of the competing values at stake, we 122 Case: 12-15093 Date Filed: 04/26/2017 Page: 123 of 281

may rely on the crucial assumption that the jurors followed the instructions given

them by the trial judge,” and answering that question in the affirmative) (quotation

marks omitted); Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976

n.9 (1985) (recognizing “the crucial assumption underlying our constitutional

system of trial by jury that jurors carefully follow instructions”).

We have obediently followed and repeated the Supreme Court’s direction

that we presume juries follow their instructions. United States v. Lopez, 649 F.3d

1222, 1237 (11th Cir. 2011) (“We presume that juries follow the instructions given

to them.”); United States v. Siegelman, 640 F.3d 1159, 1184 (11th Cir. 2011)

(same); United States v. Townsend, 630 F.3d 1003, 1013–14 (11th Cir. 2011)

(same); United States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011) (same).

Despite the overwhelming evidence of Roy’s guilt, the dissent questions

whether the jury may have found him guilty because of inferences about counsel’s

brief absence or the court not stopping the proceedings if it noticed counsel’s

absence. See Dissenting Op. at 236–240. Those are the wrong questions. The

right question, as all of the cited decisions of the Supreme Court and this Court

establish, is this one: What was the jury instructed to base its verdict on? That is

the right question because “[t]he presumption that juries follow their instructions is

necessary to any meaningful search for the reason behind a jury verdict.” United

States v. Brown, 983 F.2d 201, 203 (11th Cir. 1993).

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The jury was instructed to base its verdict on the law contained in the

instructions the judge gave it and the evidence in the form of testimony and

exhibits admitted during the trial. It was instructed that what the lawyers said and

what the judge said or did was not evidence, and that it was to decide the facts

solely on the basis of the evidence presented in the courtroom. The jury was also

instructed that it could not and should not convict Roy unless the prosecution had

carried its burden of proving his guilt beyond a reasonable doubt. We can, should,

and must presume that the jury followed those instructions and convicted Roy

solely because his guilt was proven beyond a reasonable doubt by the evidence. 24

The dissent’s contrary theory also violates the principles the Supreme Court

instructed us about when it discussed how courts should go about determining

whether an error resulted in prejudice sufficient to justify setting aside a judgment:

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless

24 In one case where defense counsel slept “frequently . . . almost every day . . . morning and evening for 30 minutes at least at a time” throughout the entire 15-day trial, the jurors discussed during deliberations their observations of the attorney “resting his head.” Ragin, 820 F.3d at 613, 621–22. (internal marks and brackets omitted). But it was never clarified whether any juror had held counsel’s dozing off against the defendant. Id. at 621 n.6. In any event, even if a juror did do so in the Ragin case, that would not justify assuming that the jurors in this case violated their oath and the instructions they were duty bound to follow.

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decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision.

Strickland, 466 U.S. at 694–95, 104 S. Ct. at 2068 (emphasis added); see also

Brady v. Maryland, 373 U.S. 83, 90–91, 83 S. Ct. 1194, 1198 (1963) (rejecting “[a]

sporting theory of justice” that assumes the jury might have violated the judge’s

ruling and instructions). Following the Supreme Court’s instructions to us, we

must assume that the jury followed its instructions and oath.

E. Summary

The harmlessness analysis in this case is not difficult. The error that

occurred when the trial resumed before counsel returned from lunch was harmless

beyond a reasonable doubt because overwhelming evidence offered while counsel

was present went to and proved the charges in Counts 2–5, which were the only

counts relevant to the testimony given during counsel’s absence. And the same

questions were repeated and not objected-to after counsel returned to the

courtroom. There is no reasonable doubt that counsel’s brief absence was

VII. Conclusion

We end, as we began, by acknowledging that although Alexander Roy

received a fair trial he did not receive a perfect one. Whatever the circumstances

surrounding it, and regardless of who knew what and when they knew it, we do not

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condone the taking of any inculpatory testimony in the absence of defense counsel.

It is constitutional error, which should be avoided. But neither would we condone,

much less participate in, scuttling the harmless error rule. As we have explained,

the rule plays an important role in, and serves vital interests of, our judicial system.

To reverse Roy’s conviction based on his counsel’s brief absence during initial

presentation of only a small part of the overwhelming evidence against his client

would require us to enlarge exceptions to the harmless error rule to the point where

they would be large enough to consume much of the rule. Doing that would run

counter to decisions of the Supreme Court, this Court, and the better reasoned

decisions of other circuits.

The dissent expresses the view that “we must vigilantly ensure we are

adhering to our obligation” and “commitment to the Constitution” where the

defendant has committed “disturbing” crimes. Dissenting Op. at 257. And it

espouses the view that the more disturbing the crimes the defendant committed the

greater our obligation to adhere to the law because “the constitutional processes

that the Framers put into place are there to protect everyone, including people

accused of the gravest and most serious crimes.” Id. We disagree with any

suggestion, if it be such, that someone charged with sexual crimes against minors

is entitled to more constitutional protections than someone charged with kiting

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checks. The constitutional protections are the same for all regardless of their

crimes.

We do agree, of course, that “[t]he Sixth Amendment guarantee of the right

to counsel does not apply on a sliding scale based on the gravity of the defendant’s

offense.” Id. at 258. But neither does the application of the harmless error rule

vary inversely with the seriousness of the crime. Countless other convicted

defendants whose trials were less than perfect have been denied automatic reversal

and a presumption of prejudice. This defendant, although he is entitled to the full

protections of the law, is not entitled to special treatment. Because the Sixth

Amendment violation that occurred during his trial was harmless beyond a

reasonable doubt, his conviction is due to be affirmed.

The judgment of the district court is AFFIRMED.

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TJOFLAT, Circuit Judge, specially concurring:

The Court holds that the presentation of inculpatory testimony to the jury in

defense counsel’s absence deprived the accused of the right to the assistance of

counsel in violation of the Sixth Amendment.1 Normally, a defendant appealing

his conviction on the ground that he was deprived of a constitutional right would

tell us who caused the deprivation. He would point to, as relevant here, the trial

judge or his own attorney, since each owed him a duty not to interfere with his

right to the assistance of counsel.2

In this appeal, however, Roy points to no wrongdoer in particular. He

doesn’t blame the trial judge, because the trial judge did nothing to prevent his

attorney from being present when the prosecutor resumed his direct examination of

a witness whose testimony, defense counsel well knew, would be inculpatory.

Blaming the trial judge—“to say that the trial judge [had to] step in,” find the

attorney, and remind him of his obligation to his client and to the court, Mickens v.

Taylor, 535 U.S. 162, 179, 122 S. Ct. 1237, 1247, 152 L. Ed. 2d 291 (2002)

(Kennedy, J., concurring)—would be a major departure from precedent. It was not

the trial judge’s, but defense counsel’s, responsibility to appear in court on time.

1 The relevant portion of the Sixth Amendment, the Counsel Clause, provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. 2 I omit the prosecutor in resolving the causation issue because the direct examination of Deputy Longson could not have resumed without the trial judge’s approval.

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But for defense counsel’s neglect of duty, the constitutional error the Court has

created would not have occurred.

But Roy does not put the blame on defense counsel. Defense counsel was

obligated under the Sixth Amendment as set out in Strickland v. Washington, 446

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to provide Roy with effective

professional assistance. This obligation governed defense counsel’s conduct out of

court as well as in court. In his opening brief in this appeal, Roy could have

argued that counsel breached his Sixth Amendment Strickland obligation by failing

to appear in court on time and thereby allowing inculpatory testimony to be taken

in his absence. 3 But he did not.

Roy did not present the argument for two reasons. First, the argument would

have failed because, as the Court’s opinion comprehensively illustrates, defense

3 Roy could have argued that counsel’s failure to appear in court on time constituted ineffective assistance under Strickland’s performance standard and that but for the deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Although we rarely entertain ineffective-assistance claims on direct appeal—because the reason for counsel’s allegedly deficient performance has not been established factually—we could have entertained Roy’s ineffective-assistance argument by assuming that counsel’s failure to appear on time constituted deficient performance under Strickland and then determining from the trial transcript whether such failure prejudiced Roy’s defense. The Court has already made that determination, finding that what transpired in counsel’s absence was harmless beyond a reasonable doubt. It should be noted that, in theory, Roy could claim that his attorney’s performance following his return to the courtroom was deficient under Strickland and that such deficiency was outcome determinative. Roy has not presented that claim, but he could do so by moving the District Court for relief under 28 U.S.C. § 2255. The filing of the motion would operate as a waiver of Roy’s attorney–client privilege. Thus, Roy and his attorney would be subject to examination under oath about counsel’s litigation strategy and how, according to Roy, counsel’s conduct fell short of Strickland’s performance standard.

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counsel’s brief absence did not prejudice Roy’s defense. Second and relatedly, in

making the argument under Strickland, Roy would be identifying defense counsel

as the relevant actor responsible for allegedly violating his constitutional rights. 4

But by identifying defense counsel as the relevant constitutional actor, Roy would

thereby lose the opportunity to argue for a more-favorable standard of review

under a new rule of constitutional law.5

The Court vindicates Roy’s decision to forgo Strickland by creating a new

constitutional rule for the protection of the right to assistance of counsel. Under

this new rule, a Sixth Amendment violation occurs if “inculpatory testimony [is] . .

. taken from a government witness without the presence of at least one counsel

representing the defendant, regardless of whether the judge or the [prosecutor]

4 Both Roy and the Government agree that Strickland does not govern, but that, nonetheless, there was a Sixth Amendment violation. The parties’ agreement, however, does not cabin our authority to apply the correct legal standard. “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S. Ct. 1711, 1718, 114 L. Ed. 2d 152 (1991). 5 At this point, I pause to note the various standards of review Roy’s claim could be assessed under the majority’s approach, my approach, and the dissent’s approach. Under the majority’s new rule, Chapman’s harmless-error standard applies: the Government bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). Under the dissent’s view, Cronic should govern this claim, prejudice is presumed, and reversal would be automatic. See United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Under my view, Strickland should govern this claim, and therefore the defendant would bear the burden of establishing both deficient performance and resulting prejudice to such an extent that there is reasonable probability of a different result absent counsel’s errors. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068.

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noticed that counsel was not there”6 (the “New Rule”). Ante at 18. Because the

defendant need not prove that the trial judge or defense counsel breached a Sixth

Amendment obligation owed to the defendant, the New Rule is a no-fault rule—at

least for purposes of this case. In future cases, the New Rule will operate as a fault

rule based on the trial judge’s conduct because trial judges have now been placed

on notice that in absence-of-counsel cases, as opposed to all other ineffective-

assistance cases, Strickland is no longer the governing law.

I write separately for several reasons. First, the New Rule cannot exist side

by side with Strickland. It would be nonsensical to entertain on direct appeal in

this case two arguments, one asserting that defense counsel did not breach a Sixth

Amendment obligation in causing inculpatory testimony to be taken in his absence,

and the other asserting that defense counsel breached his Sixth Amendment

obligation under Strickland in causing inculpatory testimony to be taken in his

absence. 7 The Court avoids the problem by eliminating the latter argument by

effectively removing defense counsel’s actions from the Sixth Amendment inquiry

6 The Court adds a caveat to the New Rule in language preceding what I have quoted. The caveat is that the New Rule is violated “absent evidence of an attempt to deliberately inject error into the record and without a waiver from the defendant.” Ante at 18. As I point out in part III, this language will have no practical effect on the operation of the New Rule. The defendant’s right to assistance of counsel will be infringed whenever the prosecution elicits inculpatory testimony in defense counsel’s absence. 7 I say it is nonsensical, because even if the defendant argued that his counsel violated Srtickland, under the New Rule, Strickland’s prejudice analysis is completely displaced by Chapman’s harmless-error analysis.

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altogether. The Court does so by relying—in cursory fashion—on Vines v. United

States, 28 F.3d 1123, 1127 (11th Cir. 1994), a dubiously reasoned case that

provides, at best, a shaky foundation for the Court’s new rule. Moreover, in the

course of displacing Strickland, the Court disregards the Supreme Court’s recent

pronouncements in Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, l91 L. Ed. 2d

464 (2015), and Wright v. Van Patten, 552 U.S. 120, 128 S. Ct. 743, 169 L. Ed. 2d

583 (2008), both of which suggest the correct framework for assessing Roy’s

claim—it is a claim for ineffective assistance of counsel, and Strickland should

govern.

Second, in holding Strickland inapplicable, the Court materially alters the

scheme the Supreme Court has established to protect the right to the assistance of

counsel throughout the Eleventh Circuit. In the absence-of-counsel context,

defense counsel is no longer involved in the scheme. In the void created by

counsel’s irrelevance, the trial judge effectively assumes counsel’s obligation to

protect the defendant’s right to the assistance of counsel, such that the trial judge is

now held accountable for the harm defense counsel may have caused his client if

inculpatory testimony is taken during defense counsel’s absence.

Finally, I fear that the Court’s New Rule is not only misguided as a matter of

logic and precedent, but it will also cause much mischief when put into operation.

The New Rule changes the standard of review this Court applies by not only

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replacing Strickland with Chapman, but also by effectively setting aside plain-error

review when defense counsel fails to object to the introduction of inculpatory

testimony taken in his absence—notwithstanding the Court’s attempt to sidestep

that issue. Nor will the Court’s hinted-at suggestions for cabining the scope of the

New Rule be possible to implement in practice. I take each of these points in

sequence.

I.

A.

The Court’s statement “Strickland assumes the presence of counsel and is

therefore inapplicable in the absence of counsel context” is drawn verbatim from

Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994). The quoted statement

in Vines is followed by this statement: “Strickland is therefore inapplicable in this

case.” Id. Both statements are based on a passage in Siverson v. O’Leary, 764

F.2d 1208 (7th Cir. 1985), which Vines quotes in a footnote. The footnote reads in

its entirety:

The crucial premise on which the Strickland formula rests—that counsel was in fact assisting the accused during the proceedings and should be strongly presumed to have made tactical judgments . . . is totally inapplicable when counsel was absent from the proceedings and unavailable to make any tactical judgments whatsoever.

Vines, 28 F.3d at 1127 n.7 (quotation marks omitted) (quoting Siverson, 764 F.2d

at 1216).

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The Vines panel read Siverson as holding that a habeas petitioner’s

ineffective-assistance claim—based on his attorney’s absence—was not a

Strickland claim. See id. at 1127 & n.7. All that Siverson held, however, was that

the Strickland presumption, “[t]he crucial premise,” that counsel’s absence might

be considered sound trial strategy, is inapplicable. Siverson, 764 F.2d at 1216.

“[C]ounsel’s absence . . . was not a considered decision ‘based on strategy,’ but

was instead merely conduct ‘grounded in negligence.’” Id. at 1215 (citing Crisp v.

Duckworth, 743 F.2d 580, 587 (7th Cir. 1984)).

The Siverson and Vines courts reviewed the ineffective-assistance claims on

collateral attack.8 Vines, 28 F.3d at 1125; Siverson, 764 F.2d at 1210. What is

important to note in these two cases is that the allegedly deficient assistance of

counsel brought about by counsel’s absence was caused, as a factual matter, by the

trial judge and defense counsel, acting together, because the trial judge gave

defense counsel permission to be absent. When Siverson and Vines are closely

examined, we find in each that the trial judge’s conduct, though described by the

courts in considerable detail, was not examined under the Sixth Amendment as a

claim that the trial judge interfered with the petitioner’s right to the assistance of

counsel, because that claim was not made. See Vines, 28 F.3d at 1125–26;

8 The claim in Siverson was brought under 28 U.S.C. § 2254, and the claim in Vines was brought under 28 U.S.C. § 2255. Vines, 28 F.3d at 1125; see Siverson, 764 F.2d at 1210, 1212.

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Siverson, 764 F.2d at 1210–12. The claim actually presented was that defense

counsel’s absence constituted ineffective assistance of counsel. Vines, 28 F.3d at

1125; Siverson, 764 F.2d at 1210.

The Siverson court judged counsel’s conduct using Strickland’s performance

standard. Siverson, 764 F.2d at 1213–15. Counsel was found to be negligent and

his performance constitutionally deficient. Nevertheless, the writ was denied.

Rather than considering the consequences of the attorney’s conduct under

Strickland’s prejudice standard, the Siverson court found the conduct harmless

under the stricter standard set forth in Chapman v. California, 386 U.S. 18, 24, 87

S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967), whereby the prosecution is required to

demonstrate that a constitutional error was harmless beyond a reasonable doubt.

Id. at 1215–18. The Vines panel, in turn, acknowledged explicitly that it had an

ineffective-assistance claim before it, but based on its reading of Siverson, held

Strickland’s prejudice analysis inapplicable to the factual scenario in question. Id.

at 1125, 1127. In doing so, the panel treated defense counsel’s conduct as

constitutionally irrelevant. What mattered was that trial testimony was taken in his

absence. The ineffective-assistance claim thus morphed into an assumption that

presenting trial testimony in defense counsel’s absence, in and of itself, violates the

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Sixth Amendment. The presumed violation went for naught, however, because the

Vines panel held that there was no prejudice shown. 9 Id. at 1130–31.

B.

A close examination of Siverson reveals why the Vines panel’s reliance on

Siverson was misguided. The defendant in Siverson stood trial on several counts,

including robbery and aggravated battery. Siverson, 764 F.2d at 1210. After the

trial concluded and the jury retired to consider its verdict, defense counsel left the

courtroom and went home, leaving a telephone number at which he could be

reached. Id. at 1210–11, 1212, 1214. He remained away throughout the jury’s

deliberations and the return of the verdict. Id. at 1210. During that time the

defendant was forced to represent himself along with the assistance of his mother.

See id. at 1211–12.

After the jury returned a verdict finding the defendant guilty on three counts,

the defendant appealed his convictions to the Illinois Appellate Court. Id. at 1212.

Among his assignments of error was the absence of his attorney, which, he said,

9 The Vines panel used yet another standard for assessing potential prejudice, that announced by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), several years after Siverson and Strickland were decided. Under Brecht, a habeas petitioner on collateral review bears the burden of demonstrating that a constitutional error at trial “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637, 113 S. Ct. at 1722 (quotation marks omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)).

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constituted ineffective assistance of counsel. 10 Id. The Illinois Appellate Court

denied the claim and affirmed his convictions. 11 Id. The defendant then petitioned

the District Court for the Central District of Illinois for a writ of habeas corpus,

presenting the same ineffective-assistance claim he had raised in state court. Id.

After holding an evidentiary hearing, the District Court granted the petition,

concluding that defense counsel’s absence did not satisfy “minimum professional

standards.” Id. at 1212–13; Siverson v. O’Leary, 582 F. Supp. 506, 510 (C.D. Ill.

1984) (citation omitted), rev’d, 764 F.2d 1208.12 The State appealed the District

Court’s decision to the Seventh Circuit.

Prior to the Seventh Circuit’s resolution of the appeal in Siverson, the United

States Supreme Court decided Strickland. Accordingly, the Seventh Circuit began

its analysis by assessing defense counsel’s conduct under Strickland’s performance

10 The defendant did not, however, assign as error the trial judge’s approval of counsel’s absence. 11 The Illinois Appellate Court denied the ineffective-assistance claim: [C]ounsel’s presence in the later stages of the trial would not have altered the outcome. And assuming the validity of the defendant’s other claims of incompetence on the part of his attorney, we do not find that they, even taken together, would have affected the outcome of the trial. Siverson v. O’Leary, 582 F. Supp. 506, 510 (C.D. Ill. 1984) (alteration in original) (quotation marks omitted) (quoting People v. Siverson, No. 15975, slip op. at A-3 (Ill. App. Ct. July 23, 1980)), rev’d, 764 F.2d 1208. 12 The District Court’s decision came 90 days before the Supreme Court decided Strickland and Cronic. Applying the governing pre-Strickland case law, the District Court found that defense counsel’s absence deprived the defendant of effective assistance of counsel at a “vital stage of the proceedings” and could not “conclude that the presence of defense counsel would not have affected the outcome of the case.” Id. at 511.

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standard. Siverson, 764 F.2d at 1213. The court determined that defense counsel’s

“complete absence during the jury deliberations and the return of the verdicts at

petitioner’s trial constituted ineffective assistance of counsel in violation of the

Sixth Amendment.” Id. at 1213–14. The court summed up its analysis of

counsel’s performance by stating that “[b]ecause the Constitution demands that

defense counsel at least provide assistance to the defendant during the critical

stages of the trial, we must conclude in this case that Siverson’s counsel ‘made

errors so serious that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment.’” Id. at 1215 (quoting Strickland, 466 U.S. at

687, 104 S. Ct. at 2064).

Moving on to the prejudice analysis, however, the Seventh Circuit declined

to resolve the issue under the Strickland formulation. Id. at 1216–17. It also

refused to presume prejudice under Cronic. Id. It held instead

that the proper standard for determining the prejudice resulting from the erroneous absence of Siverson’s counsel during jury deliberations and the return of the verdict is the same standard that was applied to similar errors prior to Strickland: whether the error was harmless beyond a reasonable doubt under Chapman.

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Id. at 1217. 13 In conclusion, I think it obvious that the Vines panel misread

Siverson as holding that the Strickland performance standard is inapplicable in

judging attorney conduct “in the absence of counsel context.” Vines, 28 F.3d at

1127. Indeed, the Siverson court without a doubt applied Strickland’s performance

standard in assessing the professional reasonableness of counsel’s behavior in

leaving his client to fend for himself. Siverson, 764 F.2d at 1215. That said, I

move to a discussion of Vines.

C.

In Vines, two defendants stood trial on the counts of conspiring to possess

cocaine with intent to distribute and possession of cocaine with intent to distribute.

Vines, 28 F.3d at 1125. At some point after the trial was underway, Vines’s lawyer

informed the trial judge that he needed to leave the courtroom for the afternoon.

Id.

After discussing the matter with the attorneys, the trial judge informed the

jury that defense counsel had been excused for the afternoon, that the defendant

had waived defense counsel’s presence, and that the witness who would be

testifying in defense counsel’s absence would not be providing testimony relating

13 Siverson was decided shortly after Strickland was handed down by the Supreme Court. It seems that the absence of counsel and the possibility of a constitutional violation influenced the Seventh Circuit’s determination that Chapman was the appropriate standard for its prejudice analysis, rather than Strickland. Regardless, we now, of course, use Strickland’s own standard for evaluating prejudice to resolve ineffective-assistance claims.

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to the defendant. Id. at 1125–26; id. at 1132–33 (Birch, J., dissenting). Two

prosecution witnesses testified during defense counsel’s absence. Id. at 1126

(majority opinion).

The jury acquitted the defendant of the conspiracy charge, but found him

guilty of possession with intent to distribute. Id. He appealed his conviction,

including in his grounds for reversal the claim that his attorney’s absence while the

two witnesses testified constituted ineffective assistance of counsel. Id. We

affirmed his conviction without considering the ineffective-assistance claim on

direct review, deferring consideration of that claim for collateral review. Id. (citing

United States v. Casas, 897 F.2d 535 (11th Cir. 1990) (mem.)). The defendant

then asserted this claim in a motion filed under 28 U.S.C. § 2255. Id.

The motion was referred to a magistrate judge. Id. The judge declined to

hold an evidentiary hearing and recommended that motion be denied on the ground

that the defendant had waived his right to counsel, that no presumption of

prejudice was warranted, and that counsel’s absence had not prejudiced his

defense. Id. The District Court denied the motion for the reasons stated by the

magistrate judge, and the defendant appealed. Id. On appeal, this Court held,

based on Siverson, that Strickland was inapplicable because defense counsel was

not present when the testimony of the two witnesses was elicited. Id. at 1127.

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Though Strickland required defense counsel “to bring to bear such skill and

knowledge as will render the trial a reliable adversary testing process,” Strickland,

466 U.S. at 688, 104 S. Ct. at 2065, the Vines panel held that Strickland did not

apply, full stop. Vines, 28 F.3d at 1127. Therefore, counsel’s performance—as

opposed to counsel’s absence—could not, as a matter of law, have provided the

District Court a constitutional basis for granting the writ and setting aside the

defendant’s conviction. This was so even though, as a matter of fact, counsel

caused the testimony to be taken in his absence.14

“Having concluded that Vines’s temporary absence of counsel claim cannot

be analyzed under Strickland,” the court proceeded to resolve the appropriate

analytical framework for reviewing Vines’s claim that his Sixth Amendment right

to counsel was violated because his counsel was absent during the taking of

testimony. Id. at 1128. The court assumed, without deciding, that the defendant

had established constitutional error by showing that his trial counsel was absent

during the taking of testimony. Id.

14 In theory, the defendant could have claimed that the trial judge, in approving defense counsel’s request and continuing the trial in his absence, interfered with his right to the assistance of counsel in violation of the court’s obligation under the Sixth Amendment. Such a claim would have been cognizable on direct appeal because the record evidencing the claim was complete, so an evidentiary hearing would not be needed. But the defendant did not raise the issue on direct appeal. The claim was therefore procedurally defaulted and, as such, would not have been cognizable in the § 2255 proceeding he brought absent a showing of cause for the default and resulting prejudice. See Martinez v. Ryan, 566 U.S. __, __, 132 S. Ct. 1309, 1316, 182 L. Ed. 2d 272 (2012).

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After concluding that defense counsel’s absence did not constitute structural

error for purposes of Cronic, id. at 1129, the court treated the violation as if it were

a trial error subject to harmless-error analysis review under Brecht,15 because it

determined that the presumed violation “may . . . be quantitatively assessed in the

context of other evidence presented in order to determine whether its admission

was harmless.” 16 Id. at 1129–30 (quotation marks omitted) (quoting Arizona v.

Fulminante, 499 U.S. 279, 307–08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302

(1991)).17 With that statement, the court proceeded to assess the harm defense

15 As mentioned above, on collateral attack a habeas petitioner bears the burden of demonstrating that a constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722 (quoting Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253). 16 Instead of searching the record for harmless error as the Court does here—that is, without assuming hypothetically what counsel would have done had he been present—the Vines panel effectively assumed that defense counsel was present while witnesses were testifying and failed to perform as a reasonably competent lawyer would have performed under the Strickland standard. Vines, 28 F.3d at 1130–31. Having assumed as much, the Vines panel then determined that defense counsel’s deficient performance caused the defendant no prejudice. 17 The panel rejected the defendant’s argument that prejudice should be determined under the “irrebuttable presumption” set forth in Cronic as follows: In order to apply Cronic . . . , we must conclude that Vines’s claim falls under one of the three circumstances Cronic enumerates as an exception to the Strickland standard. Vines was not completely denied counsel. Rather, Vines’s counsel was temporarily absent during a portion of the actual trial. Vines does not contend that his trial counsel failed to subject the prosecution’s case to meaningful adversarial testing. Thus, in order for Vines to be entitled to a presumption of prejudice, we must conclude that Vines was denied counsel at a critical stage of trial within the meaning of Cronic. . . . 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. Accordingly, we conclude that Vines’s counsel was not absent during a critical stage of trial and Vines is therefore not entitled to a presumption of prejudice under Cronic.

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counsel may have caused when, in violation of his Strickland obligation, he was

absent for a period of time during trial. The court found no harm. Id. at 1130–31.

In sum, all the Vines panel did to justify its conclusion that Strickland does

not apply “in the absence of counsel context,” id. at 1127, was cite the Siverson

passage described above Id. at 1127 & n.7. As a result, Vines could hardly be said

to have provided a solid foundation for the New Rule.

D.

The Vines panel, however, did not have the benefit of recent Supreme Court

decisions that provide the appropriate framework for assessing defense counsel’s

temporary absence at trial. But we do. Consequently, I am unable to see how the

majority’s holding squares with Wright v. Van Patten, 552 U.S. 120, 128 S. Ct.

743, 169 L. Ed. 2d 583 (2008), and Woods v. Donald, 575 U.S. __, 135 S. Ct.

1372, l91 L. Ed. 2d 464 (2015).18 Both cases involved the absence of defense

counsel during an important part of the criminal prosecution, at the plea hearing in

Van Patten and during trial in Woods. And in both cases, the Supreme Court held

that the relevant state court did not render a decision that was “contrary to, or

Vines, 28 F.3d at 1128 (footnote omitted). 18 Both Van Patten and Woods were brought and disposed of under 28 U.S.C. § 2254.

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involved an unreasonable application, of” Supreme Court precedent in assessing

defense counsel’s conduct under Strickland. 28 U.S.C. § 2254(d)(1).

In Van Patten, the defendant pled no contest to first-degree reckless

homicide. 552 U.S. at 121, 128 S. Ct. at 744. The defendant’s attorney was not

physically present during the plea hearing, but participated by speakerphone. Id.

After he was sentenced, the defendant moved the trial court to withdraw his no-

contest plea and vacate his conviction. See State v. Van Patten, No. 96-3036-CR,

1997 WL 277952, at *1 (Wis. Ct. App. May 28, 1997). He alleged that his “Sixth

Amendment right to counsel was violated when his attorney discussed the plea

offer with him by telephone and appeared at the hearing by telephone, resulting in

his incomplete understanding of the charges against him and the constitutional

rights he was waiving with his plea.” Id. The court denied his motion. The

defendant appealed, and the Wisconsin Court of Appeals affirmed. Assessing the

defendant’s Sixth Amendment claim under Strickland, the Wisconsin Court of

Appeals concluded that “[t]he record does not support, nor does Van Patten’s

appellate brief include, any argument that counsel's performance was deficient or

prejudicial.” Id. at *3. 19 The defendant then sought discretionary review in the

19 The Wisconsin Court of Appeals opinion contains no reference to Cronic or presumed prejudice. I assume that the defendant cited Cronic for the first time in his initial § 2254 petition.

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Wisconsin Supreme Court, which was denied. State v. Van Patten, 576 N.W.2d

280 (Wis. 1997).

The defendant thereafter petitioned the District Court for the Eastern District

of Wisconsin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

District Court, adopting the recommendation of a magistrate judge, denied the writ.

The defendant appealed. The Seventh Circuit concluded that the District Court got

it wrong. Van Patten v. Deppisch (Van Patten I), 434 F.3d 1038, 1042 (7th Cir.

2006). The court granted the writ, reasoning that the District Court should have

held that the Wisconsin Court of Appeals misapplied Supreme Court precedent by

assessing the defendant’s Sixth Amendment claim under Strickland instead of

under Cronic. Put another way, the Seventh Circuit decided that the “state

appellate court arrived at a decision contrary to the Supreme Court’s precedent

when it analyzed the case under Strickland” rather than Cronic, reasoning that

“[w]hen a defendant is denied assistance of counsel at a stage where he must assert

or lose certain rights or defenses, the error ‘pervade[s] the entire proceeding.’” Id.

at 1043 (second alteration in original) (quoting Satterwhite v. Texas, 486 U.S. 249,

256, 108 S. Ct. 1792, 1797, 100 L. Ed. 2d 284 (1988)).

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The Supreme Court reversed, 20 concluding that its precedent had never

clearly established that Cronic should replace Strickland in such a factual context.

Van Patten, 522 U.S. at 125–26, 128 S. Ct. at 746–47. The Court described

Cronic’s role vis-à-vis Strickland’s role in assessing ineffective-assistance claims

at the plea-hearing stage, proclaiming that “Strickland [] ordinarily applies.” Id. at

124, 128 S. Ct. at 745–46. The Court declared that Cronic applies when

“circumstances [exist] that are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified,” noting as an example the

complete denial of counsel. Id. at 124–25, 128 S. Ct. at 746 (alteration in original)

(quotation marks omitted) (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046).

After stating that its cases provided “no categorical answer to th[e] question”

whether a court should apply Cronic’s presumption of prejudice when defense

counsel participates in a plea hearing by speakerphone, the Court analyzed the

Wisconsin Court of Appeals’ decision in Van Patten I. Id. at 125, 128 S. Ct. at

746. The Wisconsin Court of Appeals held counsel’s performance by

speakerphone to be constitutionally effective; neither the magistrate judge, the

District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh

20 The Supreme Court had previously vacated the Seventh Circuit’s opinion to reconsider in light of a recent case. See Schmidt v. Van Patten, 549 U.S. 1163, 127 S. Ct. 1120, 166 L. Ed. 2d 888 (2007). On remand, the Seventh Circuit reinstated its earlier opinion. Van Patten v. Endicott (Van Patten II), 489 F.3d 827, 828 (7th Cir. 2007).

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Circuit itself stated that “[u]nder Strickland, it seems clear Van Patten would have

no viable claim.” Id. at 125, 128 S. Ct. at 746–47 (quoting Van Patten I, 434 F.3d

at 1042). As for the decision of the Wisconsin Court of Appeals, the Supreme

Court held that “it cannot be said that the state court ‘unreasonabl[y] appli[ed]

clearly established Federal law.’” Id. at 126, 128 S. Ct. at 747 (alterations in

original) (quoting Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 654, 166 L.

Ed. 2d 482 (2006)).

The facts in Woods are closer to those in the present case than are the facts

in Van Patten. In Woods, five defendants were each charged with one count of

first-degree felony murder and two counts of armed robbery. 575 U.S. at __, 135

S. Ct. at 1375. While two of these defendants pled guilty to second-degree murder,

three defendants stood trial. Id. Pertinent to the alleged ineffective-assistance

claim on habeas review, the petitioner’s defense counsel was not present in the

courtroom when the prosecution introduced testimony and evidence concerning

phone records showing calls between cell phones belonging to the defendants. Id.

Having heard previously from defense counsel that he did not object to the

introduction of the phone records—with defense counsel announcing that “I don’t

have a dog in this race. It doesn’t affect me at all.”—the trial court allowed the

testimony and evidence to be taken in the attorney’s absence. Id. Defense counsel

returned to the courtroom approximately ten minutes later, at which point he

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advised the judge that he had no objection to the testimony having been taken in

his absence. Id.

The jury convicted the petitioner, and following sentencing,21 he first

appealed his convictions to the Michigan Court of Appeals, arguing that his

attorney’s absence during a critical stage of his trial denied him his Sixth

Amendment right to effective assistance of counsel, under Cronic, with prejudice

to be presumed. People v. Donald, No. 275688, 2008 WL 1061551, at *1–2

(Mich. Ct. App. Apr. 10, 2008). The Court of Appeals disagreed, and applying

Strickland, held that “there [i]s no reasonable probability that the outcome of the

trial would have been different had counsel been present during the initial portion

of the testimony,” and thus the defendant was not deprived of his right to effective

assistance of counsel. Id. at *2.

After the Michigan Court of Appeals affirmed his convictions and the

Supreme Court of Michigan denied review of his application for leave to appeal

that judgment, the defendant sought federal habeas relief under 28 U.S.C. § 2254,

contending that the Michigan Court of Appeals misapplied Cronic. See Donald v.

Rapelje, No. 09-cv-11751, 2012 WL 6047130 (E.D. Mich. Dec. 5, 2012); People v.

Donald, No. 275688, 2008 WL 1061551, at *4 (Mich. Ct. App. Apr. 10, 2008);

21 The petitioner was sentenced to life imprisonment on the felony-murder conviction and to concurrent prison terms of 10.5 to 20 years on the armed-robbery convictions. Woods, 575 U.S. __, 135 S. Ct. at 1375.

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People v. Donald, 76 N.W.2d 87 (Mich. 2008). The District Court agreed, holding

that the “[t]he Michigan Court of Appeals’ decision was contrary to existing

Supreme Court precedent with respect to Cronic.” Id. at *14. The court also held

that the Michigan Court of Appeals erred in its “unreasonable application of the

facts as to Strickland.” Id.

The Sixth Circuit affirmed. See Donald v. Rapelje, 580 F. App’x 277 (6th

Cir. 2014). It held that at the time the Michigan Court of Appeals decided the

petitioner’s Sixth Amendment claim, Supreme Court holdings clearly established

that “the complete denial of counsel during a critical stage of a judicial proceeding

mandates a presumption of prejudice.” Id. at 283–84 (quotation marks and

citations omitted). Moreover, the Sixth Circuit observed: “The absence or denial

of counsel need not be caused by the government to trigger a presumption of

prejudice under Cronic. A presumption of prejudice applies even where ‘the

constraints on counsel . . . are entirely self-imposed.’” Id. at 283 (quoting Cronic,

466 U.S. at 662 n.31, 104 S. Ct. at 2048 n.31). “[B]y applying Strickland, rather

than Cronic, the Michigan Court of Appeals ‘applie[d] a rule that contradicts the

governing law set forth in [Supreme Court] cases.’” Id. at 285 (second and third

alterations in original) (quoting Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct.

1910, 1918, 150 L. Ed. 2d 9 (2001)).

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On certiorari review, the Supreme Court stated that the issue was whether

the Michigan Court of Appeals’ decision to assess defense counsel’s absence,

under Strickland instead of Cronic, was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by” the Court’s

holdings. Woods, 575 U.S. at __, 135 S. Ct. at 1376 (quotation marks omitted)

(quoting 28 U.S.C. § 2254(d)(1)). The Court addressed the issue by observing,

first, that “[i]n the normal course, defendants claiming ineffective assistance of

counsel must satisfy the familiar framework of Strickland v. Washington, . . .

which requires a showing that ‘counsel’s performance was deficient’ and ‘that the

deficient performance prejudiced the defense.’” Id. at __, 135 S. Ct. at 1375

(quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Under Cronic, however,

“courts may presume that a defendant has suffered unconstitutional prejudice if he

‘is denied counsel at a critical stage of his trial.’” Id. at __, 135 S. Ct. at 1375–76

(quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). A critical stage is one that

“held significant consequences for the accused.” Id. at __, 135 S. Ct. at 1376.

“According to the Sixth Circuit, these statements should have compelled the

Michigan court to hold that the phone call testimony was a ‘critical stage’ and that

counsel’s absence constituted per se ineffective assistance.” Id. The Court

disagreed. Cronic’s presumed-prejudice standard was inapplicable for three

reasons. First, “[w]ithin the contours of Cronic, a fairminded jurist could conclude

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that a presumption of prejudice is not warranted by counsel’s short absence during

testimony about other defendants where that testimony was irrelevant to the

defendant’s theory of the case.” Id. 135 S. Ct. at 1377–78. Second, “Cronic

applies in ‘circumstances that are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified,’” id. at __, 135 S. Ct. at

1378 (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046), and this was not such a

case. Third, the Michigan Court of Appeals’ decision was not “an unreasonable

application of [the Supreme Court’s] cases,” including Strickland. Id. at __, 135 S.

Ct. at 1377.

In Van Patten and Woods, like the case at hand, counsel’s absence was

entirely self-imposed. At issue before the Supreme Court in Van Patten and

Woods was not whether Strickland’s performance standard applied in determining

whether counsel’s absence was deficient, for the parties and the courts below

agreed that it did apply. Rather, the issue was whether Strickland or Cronic

provided the prejudice standard. The Court held that the state appellate courts’

applications of the Strickland prejudice standard did not involve an “unreasonable

application[] of clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).

Although the Supreme Court was reviewing the state appellate courts’

decisions with § 2254 deference, based on its decisions in Van Patten and Woods, I

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cannot imagine the Court holding Strickland wholly inapplicable in the context

here. If Roy believed he had a meritorious denial-of-counsel argument, he should

have proceeded as the defendants in Van Patten and Woods did by asserting that he

was denied effective assistance of counsel because defense counsel breached his

Strickland obligation.

II.

The New Rule fundamentally alters the traditional scheme for assessing a

violation of an accused’s Sixth Amendment right to the assistance of counsel. This

Court today finds no one in particular at fault for violating Roy’s Sixth

Amendment right. As will be discussed, the upshot of this remarkable fact is that

we can no longer apply elementary doctrines like plain-error review and invited

error sensibly to this claim. Furthermore, the actor best positioned to avoid New

Rule violations will be the trial judge, and thus, the New Rule materially alters his

obligations at trial in future cases.

“[T]he right to the assistance of counsel has been understood to mean that

there can be no restrictions upon the function of counsel in defending a criminal

prosecution in accord with the traditions of the adversary factfinding process that

has been constitutionalized in the Sixth and Fourteenth Amendments.” Herring v.

New York, 422 U.S. 853, 857, 95 S. Ct. 2550, 2553, 45 L. Ed. 2d 593 (1975). “The

right to the assistance of counsel has thus been given a meaning that ensures to the

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defense in a criminal trial the opportunity to participate fully and fairly in the

adversary factfinding process.” Id. at 858, 95 S. Ct. at 2553. Under Herring and

before today, Roy could obtain relief from his convictions only if he established

that the trial judge or defense counsel denied his attorney that opportunity to

participate fully and fairly. 22

But Roy is not required to establish that anyone denied his attorney the

opportunity to participate fully and fairly in the factfinding process in order to

make out a Sixth Amendment violation. All he had to show was that inculpatory

testimony was taken in defense counsel’s absence—fault is irrelevant. The New

Rule is thus a no-fault rule. But that is so for the purposes of this case only. In all

future cases, the New Rule will be a fault rule. And the fault will lie with the trial

judge.

In future cases, the New Rule, in operation, will hold the trial judge

answerable for the self-imposed restriction defense counsel’s absence places on his

client’s right to the assistance of counsel. In doing that, the New Rule will distort

the scheme the Supreme Court has established for protecting the right to the

assistance of counsel and, I submit, will be beyond our ken to administer.

22 I omit from my discussion the actions of other government actors such as the prosecutor because, even if the prosecutor had initiated questioning the witness on his own without defense counsel present, the prosecutor could not have done so without the trial judge’s approval.

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Prior to today under the circumstances presented here, a trial judge could not

be held responsible for infringing a defendant’s right to the assistance of counsel

unless the judge actually denied defense counsel “the opportunity to participate

fully and fairly” in the trial process.23 Id. Suppose that when the trial resumed in

this case and the prosecutor began examining Deputy Longson, the judge was

aware that Roy’s lawyer was not present and that his absence might constitute

ineffective assistance. Would the judge have a Sixth Amendment obligation to

stop the examination and have the lawyer summoned to the courtroom so he could

protect his client’s interests? Would allowing the examination to proceed deny

Roy’s attorney “the opportunity to participate fully and fairly in the trial process”?

Stated another way, would it deny Roy his right to the effective assistance of

counsel? Justice Kennedy suggested the answer to these questions is no in his

concurring opinion in Mickens v. Taylor.

The Sixth Amendment protects the defendant against an ineffective attorney.

. . . It would be a major departure to say that the trial judge must step in every time

defense counsel appears to be providing ineffective assistance, and indeed, there is

no precedent to support this proposition. As the Sixth Amendment guarantees the

23 Note that in Van Patten and Woods, the claims were not that the denial of the assistance of counsel occurred at the hands of the trial judge. Rather, as the Sixth Circuit put it in Woods, “the constraints on counsel . . . [we]re entirely self-imposed” by defense counsel. Donald v. Rapelje, 580 F. App’x 277, 283 (6th Cir. 2014) (quoting Cronic, 466 U.S. at 662 n.31, 104 S. Ct. at 2048 n.31.

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defendant the assistance of counsel, the infringement of that right must depend on

a deficiency of the lawyer, not of the trial judge.

535 U.S. 162, 179, 122 S. Ct. 1237, 1247, 152 L. Ed. 2d 291 (2002)

(Kennedy, J., concurring) (citing Strickland, 466 U.S.at 685–86, 104 S. Ct. at

2063. 24

The New Rule will be “a major departure” in trials that begin once our

decision today is announced. The trial judge will be on notice that if inculpatory

testimony is presented while defense counsel is absent, a constitutional error will

have occurred. The judge will have constructively caused the error by failing to

prevent it. He could have ensured counsel’s appearance, but failed. On appeal, the

defendant will seize on this failure to argue that his conviction should be reversed.

Whether or not the defendant prevails will depend on the standard of review this

Court uses to assess the harm he suffered because inculpatory testimony was

received in his lawyer’s absence.

Traditionally, the standard for review for trial-court error on direct appeal

depends on whether the defendant called the error to the trial judge’s attention in a

24 The Court holds holds that “inculpatory testimony . . . taken from a government witness” gives rise to a Sixth Amendment violation. I suggest that under the Court’s opinion any evidence incriminating the defendant that is made part of the record during his attorney’s absence would create a Sixth Amendment violation.

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timely objection so that the error might be avoided. If the defendant objects, the

district court overrules the objection, and we conclude that the court has erred, we

consider whether the error was harmless under Rule 52(a) of the Federal Rules of

Criminal Procedure25 or Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.

Ed. 2d 705 (1967), for a constitutional error. If the defendant fails to object and we

conclude that the court erred, we would consider whether the error constituted

plain error under Rule 52(b).26 In these “absence of counsel” cases, I assume that

counsel would not have objected to an error that occurred during his absence and

conclude, as explained below, that that Rule 52(b) would be inapplicable and that

Chapman would provide the standard of review.

The constitutional error the New Rule creates will occur in one of two

scenarios. The first involves defense counsel’s absence without the court’s

25 See Fed. R. Crim. P. 52(a) (“Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). 26 See Fed. R. Crim. P. 52(b) (“Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); Molina-Martinez v. United States, 578 U.S. __, __, 136 S. Ct. 1338, 1343, __ L. Ed. 2d __ (2016) (“First, there must be an error that has not been intentionally relinquished or abandoned. Second, the error must be plain—that is to say, clear or obvious. Third, the error must have affected the defendant’s substantial rights, which in the ordinary case means he or she must ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different. Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” (alteration in original) (citations omitted) (first quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S. Ct. 2333, 2336, 159 L. Ed. 2d 157 (2004) and then quoting United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779, 123 L. Ed. 2d 508 (1993))).

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permission, as in this case. The second involves defense counsel’s absence with

the court’s permission, as in Vines.

In the first scenario, defense counsel fails to call the New Rule violation to

the trial judge’s attention after returning to the courtroom and discovering what

transpired during his absence. The defendant is convicted and on appeal he cites

the New Rule violation in arguing that his conviction should be reversed.

Although the error had not been preserved for appellate review, we do not review

the error under the plain-error doctrine. The error had already occurred, and the

trial judge was powerless to undo it. Hence, an objection would have served no

useful purpose; it would have been an exercise in futility. Our review of the harm

caused by the inculpatory testimony is conducted under the Chapman standard, not

the plain-error doctrine. 27

In the second scenario, instead of bringing the potential error to the trial

judge’s attention through an objection, defense counsel seeks permission for an

anticipated absence. The defendant is convicted and on appeal he cites the New

Rule in arguing that his conviction should be reversed. The Government, in

27 I note that the Government has not taken the position on appeal that the invited-error doctrine should foreclose Roy’s claim. That is, in absenting himself, Roy’s attorney invited the constitutional error he now asserts, the Government acknowledges, and the Court recognizes. In my view, the Court’s opinion would not foreclose the Government from invoking the doctrine in a case presenting the first scenario.

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response, argues that the invited-error doctrine forecloses the defendant’s

argument. 28 This response presents the following conundrum.

If the invited-error doctrine is held inapplicable, the defendant will have his

cake and eat it too. He will receive the benefit of the bargain he authorized his

lawyer to strike with the court; 29 at the same time, he will give the opportunity to

challenge as Sixth Amendment error the taking of inculpatory testimony during

defense counsel’s absence. Allowing the defendant to have his cake and eat it too

would run counter to both common sense and the weight of precedent. For this

reason, we would be inclined to hold the doctrine applicable.

28 As we have explained before,

“The doctrine of invited error is implicated when a party induces or invites the district court into making an error.” Alabama Great Southern R. Co. v. Johnson, 140 F.2d 968, 970–71 (5th Cir. 1944). For example, a defendant can invite error by introducing otherwise inadmissible evidence at trial or by submitting an incorrect jury instruction to the district judge that is then given to the jury. Generally, an appellate court will not review an error invited by a defendant, on the rationale that the defendant should not benefit from introducing error at trial with the intention of creating grounds for reversal on appeal. United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998). See also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981). The invited-error doctrine can be invoked to foreclose appellate consideration of a constitutional error. See, e.g., United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). 29 We must assume that the bargain benefited—or was at least neutral to—the defendant because he consented to it after having been fully informed of the consequences that could result from his lawyer’s absence. Among other things, in determining whether the defendant consented to the bargain, the court would have explained that if inculpatory testimony were taken in counsel’s absence, a constitutional violation would have occurred, and that, if convicted, he could appeal his conviction and assert the violation as a ground for reversal.

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If we held the doctrine applicable, though, a constitutional violation

occurred with impunity. Since Strickland is inapplicable in the absent-attorney

context under the New Rule’s reasoning, the defendant could not claim in a motion

filed under 28 U.S.C. § 2255 that his attorney’s ineffective assistance, in failing to

anticipate the harm that could result from the introduction of inculpatory testimony

in his absence, caused the violation.

In sum, if we held the invited-error doctrine inapplicable, we would subject

the court to ridicule. If we held it applicable, we would have allowed a

constitutional violation to occur without redress. The conundrum I have described

is the result of our alteration—presumably, for the absence-of-counsel context

alone—of the scheme the Supreme Court has established to ensure the Sixth

Amendment’s guarantee of the assistance of counsel. The majority attempts to

minimize the mischief that alteration will cause by hinting that the New Rule will

not apply if the defendant waives counsel’s absence. See ante at 18. As I explain

below in positing the effect the New Rule will have on the trial of criminal cases—

especially multi-defendant cases—this caveat will turn out to be inoperative.

III.

The immediate reaction of the District Judges of the Eleventh Circuit will be

to reconsider the ways in which they monitor the presence of defense counsel

throughout every stage of a criminal prosecution. After reading what happened in

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this case, they will take whatever steps are necessary to ensure that, during every

aspect of trial, defense counsel will be present at all times. Despite close

monitoring, however, there will be times when the court becomes unaware of an

attorney’s absence—especially in a multi-defendant case.30 Although the absence

may be of short duration, it will result in a constitutional violation if, during the

absence, inculpatory testimony were taken.

There will also be times when counsel seeks leave of court to attend to

matters elsewhere, as was the case in Vines and in Woods. After receiving the

prosecutor’s assurances that no testimony, or other evidence, would be presented

during counsel’s absence that would potentially incriminate his client and having

obtained the defendant’s permission for defense counsel’s absence, the trial judge

granted defense counsel’s request.

In creating the New Rule, the Court hinted that the New Rule would not be

violated if the defendant were to waive defense counsel’s absence. Ante at 18. By

waiving the presence of defense counsel, the defendant would thereby relinquish

the right to raise a New Rule violation on appeal.

30 I vividly recall trying a 19-defendant drug-trafficking conspiracy when sitting by designation in Brunswick, Georgia, in the early 1980s. Keeping track of the movement of 19 lawyers in the packed courtroom was no small task. I am sure there were moments when a lawyer stepped out of the courtroom for any number of reasons—to go to the restroom, to ask the Marshal whether a witness subpoena had been served, or to make a telephone call.

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That a defendant may waive the right to the presence of counsel for some

period while he is standing trial raises a question the Court’s opinion doesn’t seem

to answer: Can the trial judge find a waiver based on counsel’s representation that

his client agreed to counsel’s absence or does the trial judge have to address the

defendant directly and explain what will likely take place in counsel’s absence,

pointing out the disadvantages of not having counsel at his side?

The Fifth Circuit, drawing on the Supreme Court’s seminal decision in

Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), and the

Circuit’s decision in Ford v. Wainwright, 526 F.2d 919 (5th Cir. 1976),31 answered

that question in United States v. Russell, 205 F.3d 768 (5th Cir. 2000). As Russell

explained, the trial judge must determine whether the defendant is willing to waive

the right to counsel:

The right to counsel must be waived affirmatively and such waiver must be understandingly, intelligently, and voluntarily done. A waiver cannot be established through presumed acquiescence. Furthermore, it is the “responsibility, obligation and duty of the Trial Judge” to make this “serious determination of waiver,” and “such determination should appear plainly on the record.” The trial court should assist in protecting the defendant’s rights, at a minimum, by insuring that the defendant is aware of and understands the right to have counsel present, by explaining the meaning and consequence of waiving the right to counsel . . . and making sure that such waiver . . . is on the record.

31 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981).

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Id. at 771 (citations omitted) (quoting Ford, 526 F.2d at 922).

Assuming that the trial judge adheres to this standard in deciding whether or

not the defendant has waived his right to the assistance of counsel during his

attorney’s absence, I consider the likelihood that the court would find a waiver in

either of two scenarios. One is depicted in this case, Roy, in which defense counsel

absented himself without the court’s permission. The other scenario is depicted in

Vines and Woods, in which defense counsel left the trial with the court’s

permission and the defendant’s consent.

A waiver in the Roy scenario has to be found, if at all, after the fact,

following counsel’s absence. To find a waiver, the court must find that prior to

counsel’s absence, the defendant, having been fully informed of the untoward

consequences he might suffer as the trial proceeds in counsel’s absence,

intelligently and voluntarily waived his right to counsel during that absence.

Four “parties” have an interest at stake: the trial judge, the prosecutor, the

defendant, and defense counsel. The trial judge wants to obtain a waiver, for if

upheld on appeal, the waiver would nullify the constitutional error as a ground for

reversing the defendant’s conviction, thereby avoiding a new trial. The prosecutor

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wants a waiver for the same reason. 32 The defendant, if informed that a

constitutional error has been committed that would inure to his benefit on appeal in

the event he is convicted, is likely to invoke the attorney–client privilege and

decline to answer the judge’s questions, which ask him to reveal what, if anything,

his attorney told him before absenting himself. Defense counsel, although not

answerable under Strickland for the harm his absence caused his client, is

answerable under Strickland for informing his client about the constitutional error

that had occurred during the absence and that a waiver would not be in his client’s

best interest. In short, in the Roy scenario, the trial judge and the prosecutor want a

waiver; the defendant and his attorney do not.

To avoid having to establish in the defendant’s appeal of his conviction that

the constitutional error was harmless beyond a reasonable doubt, the prosecutor

asks the trial judge to determine whether the defendant waived his right to counsel

prior to his attorney’s absence. 33 Assuming the judge may be willing to undertake

the task he would likely decide to question the defendant in open court rather than,

without the prosecutor, in camera. To enable the judge to proceed, the defendant

has to waive the attorney–client privilege. That cannot occur until the defendant 32 The prosecutor evidenced this concern in this case, after Roy’s attorney returned to the courtroom. Although the prosecutor could not have anticipated the New Rule, he obviously anticipated a potential Strickland claim based on counsel’s absence. 33 In the case at hand, the prosecutor attempted to minimize the prejudicial effects of defense counsel’s absence by repeating his questions he had asked Deputy Longson during counsel’s absence and obtaining the answers Longson had given.

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has had an opportunity to confer with his lawyer. The lawyer’s advice is key. The

lawyer recommends that the defendant not waive the attorney–client privilege. A

waiver of the attorney–client privilege could lead to the waiver of the right to

counsel during counsel’s absence, and that waiver would, in the event of a

conviction, eliminate any absence-related constitutional error as a ground for

reversing the conviction on appeal. 34 The lawyer recommends against waiving the

attorney–client privilege for another reason: the defendant’s answers to the court’s

questioning might work against counsel’s defense strategy.

In sum, in the Roy scenario, an inquiry into whether the defendant waived

his right to the assistance of counsel prior to counsel’s absence is fraught with

problems—some obvious, some hidden. I predict that the District Judges of this

Circuit will forego the inquiry altogether.

Turning to a waiver in the Vines–Woods scenario, my reading of the tea

leaves is that it will be a rare occasion, indeed, when the trial judge grants defense

counsel a leave of absence. I cannot imagine granting counsel leave in a trial

involving only one defendant. During counsel’s absence, the defendant would

simply sit still and remain silent, defenseless. And I can only imagine granting

34 Under the New Rule, Strickland’s performance standard would govern counsel’s conduct following his absence and therefore the advice he gives his client as to whether he should waive the attorney–client privilege. I suggest that to avoid an ineffective-assistance claim on collateral attack, counsel would advise the defendant not to waive the privilege.

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counsel leave in a multi-defendant trial in extraordinary circumstances. Multi-

defendant trials invariably involve a charge of conspiracy, which means that

practically all of the evidence is admissible against all of the defendants as relevant

to prove the crime. The trial judge, when inquiring of a particular defendant as to

whether the defendant is willing to waive the right to his attorney’s presence,

would have to be clairvoyant to inform the defendant of exactly what would

transpire during his attorney’s absence. Testimony inculpating the accused could

come in unexpectedly through a co-defendant’s cross-examination of a witness, or

it could come in the form of an exhibit introduced into evidence or marked for

identification and published to the jury. A waiver of counsel’s presence that would

cover the unknown or unanticipated would be, to put it mildly, of dubious validity.

A waiver found under these circumstances would do away with the Sixth

Amendment violations that occurred in counsel’s absence. If convicted, the

defendant will raise the violations as grounds for reversal in his opening brief on

appeal. The Government will assert the waiver in its answer brief, and the

defendant in his reply brief will argue that the waiver was invalid. Our job will be

to wrestle with the waiver’s validity or, alternatively, to search the record to

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determine whether the constitutional violations were harmless beyond a reasonable

doubt.35

Yes, it will be a rare occasion, indeed, when a trial judge grants defense

counsel permission to absent himself from the trial proceeding. Thus, the Court’s

caveat hinting that the possibility of defendants’ waiving the presence of counsel

may mollify the effects of the New Rule rings hollow.

IV.

The New Rule modifies Strickland’s application in the Eleventh Circuit.

After today, a defendant will be unable to claim that his attorney’s absence from

the courtroom during trial fell below the standard for effective assistance of

counsel set forth in Strickland.

The New Rule relieves defense counsel of his Sixth Amendment obligation

under Strickland when absenting himself from trial. The result is that, during

counsel’s absence, the client is left standing trial alone without the right to defend

himself, which he would possess if he had chosen to represent himself. Although

he placed his client in that situation, defense counsel is not accountable under 35 Based on the procedural posture of claims that will be brought under the New Rule on direct review, the difficulty of assessing a purported waiver’s validity may prove to be beyond our review in the overwhelmingly majority, if not all, such cases. As Judge Birch’s dissenting opinion in Vines suggests instead, harmless-error review under Chapman will be the norm, if not the entire ball game. See Vines, 28 F.2d at 1137–38 (Birch, J., dissenting) (“I conclude that the waiver issue has not been reviewed properly in the district court. Therefore, the record in this case does not enable us to determine if Vines’s waiver of his right to counsel was knowing, intelligent and voluntary. A remand should be required to make this determination.”).

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Strickland for any prejudice his client suffered during his absence. Instead, the

responsibility for the prejudice lies with the trial judge.

The responsibility lies with the trial judge because the New Rule transfers to

the trial judge defense counsel’s obligation under Strickland not to absent himself

from the trial proceeding and leave his client defenseless. The trial judge is held

responsible, as if he had committed a constitutional error, for any prejudice the

defendant suffers during counsel’s absence. If the defendant is convicted and

appeals, the trial judge will be held accountable for the prejudice, if any, in the

form of a reversal, unless the Government can convince this Court that the

prejudice was harmless beyond a reasonable doubt.

In conclusion, today’s decision rearranges the Supreme Court’s scheme for

protecting the right to the assistance of counsel in the absence-of-counsel context,

and that context alone. The framework Strickland fashioned is modified,

supplanted by a new constitutional rule that imposes accountability on the trial

judge without fault. As applied going forward, the New Rule becomes fault based

and effectively instructs trial judges that if a defendant’s lawyer is absent at any

time during the prosecution, they will have committed constitutional error.36

36 In promulgating the New Rule, we are acting as if we were exercising our supervisory powers, but doing so unnecessarily. As the Supreme Court observed in United States v. Hasting, “Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since by definition, the conviction would have been obtained

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Eighty years ago, Justice Brandeis, concurring in Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J.,

concurring), observed that the Supreme Court “will not formulate a rule of

constitutional law broader than is required by the precise facts to which it is to be

applied.” Id. at 347, 56 S. Ct. at 483 (quotation marks and citation omitted). In

this case, the New Rule is unnecessary to affirm Roy’s convictions. I would

decline Roy’s invitation, which the Government joins, to modify Strickland’s

application and create a new Sixth Amendment rule, because any error that may

have occurred was harmless beyond a reasonable doubt. In affirming his

convictions, I would explicitly state that Roy is free to pursue a Strickland

ineffective-assistance claim in the District Court in a motion filed under 28

U.S.C. § 2255.

notwithstanding the asserted error.” 461 U.S. 499, 506, 103 S. Ct. 1974, 1979, 76 L. Ed. 2d 96 (1982). In this case, since the alleged error is harmless beyond a reasonable doubt, this Court need not make the constitutional rulings it is making.

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WILLIAM PRYOR, Circuit Judge, concurring:

Although I agree that we should review for harmless error and that the error

in this appeal is harmless, we have unnecessarily complicated this appeal. This

appeal does not require that we create a new test to identify structural defects. Nor

does it require that we adopt wholesale a multi-factor test that other circuits

designed to address the different problem of a sleeping lawyer. I concur in full in

Parts I, II, III, IV, VI, and VII of the majority opinion. I also concur in Parts V.A,

V.B, V.D, and V.E, except for the characterization of Cronic as an exception to the

harmless error rule instead of a kind of constitutional violation. I do not join Part

V.C.

The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

Const. Amend. VI. The Supreme Court issued two decisions on the same day

interpreting this clause: Strickland v. Washington, 466 U.S. 668 (1984), and United

States v. Cronic, 466 U.S. 648 (1984). Strickland held that ineffective assistance of

counsel, defined as performance that is both objectively unreasonable and actually

prejudicial, violates the Sixth Amendment. 466 U.S. at 688, 692. Cronic clarified

that some circumstances require no showing of actual prejudice to establish a Sixth

Amendment violation, namely those “that are so likely to prejudice the accused

that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at

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658. For example, we presume prejudice for (1) the “complete denial of counsel”

“at a critical stage of . . . trial,” (2) the “entire[] fail[ure] to subject the

prosecution’s case to meaningful adversarial testing,” and (3) what amounts to a

sham appointment of counsel, as in Powell v. Alabama, 287 U.S. 45 (1932).

Cronic, 466 U.S. at 659–61. Strickland is about the ineffective assistance of

counsel, and Cronic is about what amounts to no assistance of counsel at all.

The majority treats Cronic as an “exception to the harmless error rule,” see,

e.g., Maj. Op. at 26, when it actually describes “a narrow exception to the two

prong Strickland test.” Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994);

see also Castillo v. Fla., Sec’y of Dep’t of Corr., 722 F.3d 1281, 1286–87 (11th

Cir. 2013). Both Strickland and Cronic address whether a constitutional violation

occurred, not an exception to an ordinary standard of review. See Mickens v.

Taylor, 535 U.S. 162, 166 (2002).

I agree with the majority that a violation of the Sixth Amendment occurred

at Roy’s trial. I agree with the majority that “we are not treating this as an attorney

error case. . . . Nor do the parties treat it as one.” Maj. Op. at 19 n.7. This

conclusion makes sense because “Strickland assumes the presence of counsel.”

Vines, 28 F.3d at 1127. I also agree that Roy’s appeal does not present the kind of

extraordinary circumstances discussed in Cronic that would entitle him to a

presumption of prejudice. Counsel’s absence for seven minutes of testimony in a

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week-long trial, where the testimony was then repeated without objection during

counsel’s presence, is neither a complete denial of counsel for a critical stage nor

an entire failure to provide meaningful adversarial testing. Nevertheless, I also

agree with the majority that “it is a violation of the Sixth Amendment for

inculpatory testimony to be taken from a government witness without the presence

of at least one of the defendant’s counsel,” Maj. Op. at 18, because the defendant

has briefly been denied “the Assistance of Counsel for his defence,” U.S. Const.

Amend. VI.

Because the denial of Roy’s constitutional right to the assistance of counsel

is neither the kind described in Strickland nor in Cronic, we must decide whether

this violation is a trial error or a structural defect. Most constitutional errors are

trial errors: those that “occur during presentation of the case to the jury” and have

an effect that can “be quantitatively assessed in the context of other evidence

presented in order to determine whether they were harmless beyond a reasonable

doubt.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (alterations

adopted) (quoting Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991)). Other

constitutional errors are structural defects, which “defy analysis by harmless-error

standards because they affect the framework within which the trial proceeds.”

Gonzalez-Lopez, 548 U.S. at 149 (alteration adopted) (internal quotation marks

omitted) (quoting Fulminante, 499 U.S. at 309–10). Structural defects are those

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“whose precise effects are unmeasurable, but without which a criminal trial cannot

reliably serve its function.” Sullivan v. Louisiana, 508 U.S. 275, 281 (1993).

Roy’s appeal does not present a structural defect. The brief absence of

counsel does not present the sort of pervasive, framework-shifting violation that

makes the denial of counsel of choice or the total denial of counsel structurally

defective. Gonzalez-Lopez, 548 U.S. at 150. As thoroughly explained by the

majority, the temporary absence of Roy’s counsel did not have “consequences that

are necessarily unquantifiable and indeterminate” that “unquestionably qualif[y] as

‘structural error.’” Id. (quoting Sullivan, 508 U.S. at 282). There was no systemic

breakdown in the adversarial process, and we can easily measure Roy’s prejudice.

I agree with the majority that the error here was harmless beyond a

reasonable doubt. Future violations of the Sixth Amendment based on the

temporary absence of counsel can be easily avoided: I would hope that no district

court in this Circuit would ever begin or resume a trial without defense counsel

being present. If a lawyer is late, a district court can employ other remedies to

solve that problem.

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JORDAN, Circuit Judge, concurring:

For me, the record drives the resolution of this case and renders largely

academic the debate about what constitutes a “critical stage” of a trial. I therefore

join the court’s opinion except for Parts V.B and V.C.3, both of which discuss

what is or is not a “critical stage.” The portions I join contain what I consider to be

the court’s two most important holdings: that there was a Sixth Amendment

violation due to defense counsel’s absence from a brief portion of the trial, and that

this constitutional error was harmless.

To recap, while Mr. Roy’s counsel was absent from the courtroom for seven

minutes, Deputy Longson answered a number of questions posed to him by the

prosecutor. Once counsel had returned, however, Deputy Longson repeated the

testimony he had given in counsel’s absence. There was one difference in the

testimony, as the court’s opinion explains, but that difference was not material. So

counsel heard essentially everything he had missed during his brief absence, chose

not to object to what he heard upon his return, and had the opportunity to cross-

examine Deputy Longson concerning the repeated testimony.

Because there was, in practical terms, a do-over after counsel returned to the

courtroom, this case is amenable to harmless error review, and there is no need (or

institutional reason) to presume prejudice. We can, without much difficulty, assess

the impact (or lack thereof) of counsel’s absence, as was done in Sweeney v.

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United States, 766 F.3d 857, 860–61 (8th Cir. 2014), and United States v. Kaid,

502 F.3d 43, 45-47 (2d Cir. 2007).

Another way to approach this case is to think about what might have

happened had Mr. Roy’s counsel objected, immediately upon his return to the

courtroom, to evidence being presented in his absence. The district court, I think,

would not have been compelled to grant an immediate mistrial, and could have

remedied the Sixth Amendment violation in a number of ways. For example, the

district court could have told the jurors what happened, stricken the testimony

introduced in counsel’s absence, instructed the jurors to disregard that testimony,

and allowed the prosecutor to elicit that testimony again. Or the district court

could have excused the jury, allowed the court reporter to read back the testimony

that counsel had missed, and permitted counsel to lodge any objections he wished.

Either of these two options, in my opinion, would have allowed counsel to be

prepared to question Deputy Longston and rendered the constitutional error

harmless. Here, the repetition of the missed testimony following counsel’s return

to the courtroom accomplished essentially the same thing.

But where the absence of counsel is longer, and/or where the missed

testimony is not substantially repeated or available for review prior to cross-

examination, the constitutional analysis (and the result) might well be different.

See, e.g., United States v. Russell, 205 F.3d 768, 769–70, 772–73 (5th Cir. 2000);

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Olden v. United States, 224 F.3d 561, 566, 568–70 (6th Cir. 2000). The same goes

for when both the defendant and his counsel are missing from the courtroom while

inculpatory testimony is presented, as the defendant’s absence adds an important

wrinkle to the analysis. Cf. Snyder v. Comm. of Massachusetts, 291 U.S. 97, 107–

08 (1934) (“So far as the Fourteenth Amendment is concerned, the presence of a

defendant is a condition of due process to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only.”); United States v.

Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000) (articulating the same standard under

the Fifth Amendment). I do not read the court’s opinion to suggest otherwise.

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ROSENBAUM, Circuit Judge, concurring in part and concurring in the result:

In my view, the Majority opinion’s ultimate determinations that the error in

Roy’s case is subject to harmless-error review and that the error here was, in fact,

harmless beyond a reasonable doubt are correct. But I respectfully disagree with

the Majority opinion’s framework for evaluating cases raising claims involving

counsel’s absence during the taking of directly inculpatory evidence in single-

defendant trials.

Though the Majority opinion correctly acknowledges that the absence of

counsel during the taking of directly inculpatory evidence can be structural error,

see Maj. Op. at 61-72, it rejects the notion that counsel’s absence can constitute the

type of structural error known as Cronic 1 error if counsel is not gone for the

entirety of a “critical stage” of trial. Instead, the Majority asserts that we need a

new substantial-portion-of-the-trial standard, derived without reference to Cronic,

to assess whether structural error has occurred when counsel is absent for only part

of trial. I cannot agree with this conclusion. If a defendant suffers deprivation of

counsel that is “so likely to prejudice the accused that the cost of litigating [its]

effect in a particular case is unjustified,” United States v. Cronic, 466 U.S. 648,

658 (1984), then Cronic error has occurred, regardless of whether the deprivation

lasted for an entire “critical stage” of trial. As a result, we must presume prejudice.

1 United States v. Cronic, 466 U.S. 648 (1984).

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The Majority’s development of a new standard to supplement Cronic solves

a non-existent problem. Contrary to the Majority opinion’s contention, Cronic’s

language does not impose a repressive “formula” that makes the opinion

inapplicable in cases where counsel is absent for only part of trial. See Maj. Op. at

60. The Majority opinion proceeds on the incorrect assumption that Cronic error

occurs only when “defense counsel ‘entirely fails to subject the prosecution’s case

to meaningful adversarial testing’ in the trial or where ‘the complete denial of

counsel’ at a ‘critical stage of [the] trial’” happens. See id. at 22-23 (quoting

Cronic, 466 U.S. at 659). But these formulations are merely demonstrative

examples of “circumstances [involving denial of counsel] that are so likely to

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

unjustified”—Cronic’s ultimate standard for structural error. Cronic, 466 U.S. at

658.

In evaluating a deprivation-of-counsel error, we must not lose sight of our

ultimate goal—to safeguard the adversarial process that gives a trial its basic

character. The Supreme Court did not intend Cronic to provide an exhaustive list

of specific circumstances giving rise to a presumption of prejudice. Rather, the

decision and the Supreme Court’s later jurisprudence on structural error

demonstrate that Cronic error includes any denial-of-counsel error that renders a

trial presumptively unreliable because of a breakdown of the adversarial process.

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See id. at 656-58. Simply put, when the absence is long enough to create a high

probability that the accused fundamentally did not receive the trial promised to him

under the Constitution, structural error occurs, and we need not conduct any search

for actual prejudice. This type of error, of course, can occur when counsel is

absent for only part of a critical stage of trial.

Nor are the differences between the Majority opinion’s approach and an

analysis under Cronic merely semantic. The Majority opinion’s departure from

Cronic imparts at least two undesirable consequences. First, the new standard that

the Majority opinion announces today—the substantial-portion-of-the-trial

standard—violates the Supreme Court’s instruction to use a categorical, rather than

case-by-case, approach to determining whether an error is structural. Indeed, the

Majority opinion’s test expressly requires case-by-case application and the

weighing of subjectively judged factors. See Maj. Op. at 70-71. This type of

inquiry defeats the purpose of review for structural error—to identify and weed out

circumstances highly likely to result in “fundamental unfairness” where finer-tooth

review will often be impractical or judicially uneconomical. It will also

necessarily cause inconsistent determinations about when structural error occurs in

absent-counsel cases.

The Majority opinion’s substantial-portion-of-the-trial standard also does not

sufficiently appreciate the fundamental nature of the absence-of-counsel error. So

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it relegates even lengthier absences to trial-error status, even though the role that

counsel plays at trial warrants that all but the briefest of absences in a single-

defendant trial constitute structural error.

Instead of the Majority opinion’s approach, we must evaluate whether

counsel’s absence in a single-defendant trial justifies a presumption of prejudice

without regard to whether the defendant was actually prejudiced in a given case.

We do that by making a probability assessment of when, in general, counsel’s

absence becomes long enough that it is likely to result in a breakdown in the trial

structure; create the appearance of unfairness to the jury and the public; affect

counsel’s trial strategy; and make the potential for prejudice to the defendant high

and the costs of litigating the actual effects of the denial, if even possible, not

worthwhile. When that happens, the defendant has suffered structural error under

Cronic.

Contrary to the Majority opinion’s suggestion, these factors allow hardly any

wiggle room for the absence of counsel before trial error crosses the threshold of

structural error and requires prejudice to be presumed. So structural error must be

the rule, not the exception as the Majority opinion makes it, in absent-counsel

cases.

I write separately to explain where the line must be drawn in the course of

determining whether Cronic error has occurred and why it must be ascertained

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without respect to whether prejudice has, in fact, occurred in a given case. The

general rule must be that counsel’s absence in a single-defendant trial is structural

error under Cronic when it renders a trial presumptively unreliable because of a

breakdown of the adversarial process—a rule that correlates with counsel’s

absence for more than ten minutes or 1% of the trial.

I. Trial error and structural error differ in important ways.

Constitutional errors fall into two categories: trial error and structural error. 2

Trial error happens “during the presentation of the case to the jury[] and . . . may

therefore be quantitatively assessed in the context of other evidence.” Arizona v.

Fulminante, 499 U.S. 279, 307-08 (1991). When trial error occurs, we evaluate it

by determining whether the government has proven that the error was harmless to

the outcome, beyond a reasonable doubt. Id. “[M]ost constitutional errors” fall

into the category of trial error. United States v. Gonzalez-Lopez, 548 U.S. 140, 148

(2006) (internal quotation marks omitted).

2 In United States v. Gonzalez-Lopez, 548 U.S. 140, 159 (2006) (Alito, J., dissenting), four dissenting Justices took issue with the Court’s division of constitutional error into the all- inclusive categories of trial error, which always is subject to harmless-error review, and structural error, which always results in automatic reversal. While the Court stated that its conclusion that denial of the right to counsel of choice constitutes structural error “relie[d] neither upon such comprehensiveness nor upon trial error as the touchstone for the availability of harmless-error review,” the Court nonetheless responded to the dissenters’ objection by opining that “it is hard to read [its precedent] as doing anything other than dividing constitutional error into two comprehensive categories.” Id. at 149 n.4.

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Structural error, in contrast, “affect[s] the framework within which the trial

proceeds, rather than [being] simply an error in the trial process itself.”

Fulminante, 499 U.S. at 310. This type of error “necessarily render[s] a trial

fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577 (1986). For this reason,

when structural error occurs, we do not give the government a chance to try to

demonstrate beyond a reasonable doubt that the defendant was not prejudiced;

instead, we assume prejudice without actually assessing the record for it. See

generally Gonzalez-Lopez, 548 U.S. at 148.

Failure to provide the “basic protections” at trial, id.—an impartial judge,

the correct standard of proof, an impartial jury, and the assistance of counsel, see

Neder v. United States, 527 U.S. 1, 9 (1999)—results in structural error because

when any of these safeguards is missing, “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.” Rose, 478 U.S. at 577-78

(citation omitted).

The effects of the structural error can be difficult or even impossible to

quantify. Gonzalez-Lopez, 548 U.S. at 149 n.4. And even when they can be

assessed, structural error involves “‘circumstances . . . that are so likely to

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

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unjustified.’” See Wright v. Van Patten, 552 U.S. 120, 124 (2008) (quoting

Cronic, 466 U.S. at 658).

Trial error and structural error differ in another important way as well.

While we assess harmless error on a case-by-case basis, an error that qualifies as

structural error does so categorically. As the Supreme Court has explained, “a

constitutional error is either structural or it is not,” so we do not evaluate the

specific impact of a given iteration of constitutional error upon a jury’s verdict

when we determine whether the error constitutes structural error. Neder, 527 U.S.

at 14.

II. Denial of counsel during some of the taking of inculpatory evidence in a one-defendant trial can rise to the level of Cronic error.

Structural error can arise in different ways in the context of the denial of the

Sixth Amendment right to counsel, but the touchstone for the analysis in all cases

asks whether the denial has resulted in circumstances “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. In Cronic, the Supreme Court identified some specific

circumstances that would meet this standard to demonstrate how courts should

think about the problem.

The “[m]ost obvious” variety of Cronic error arises when “the accused is

denied counsel at a critical stage of . . . trial.” Cronic, 466 U.S. at 659. Perhaps

this manifestation of Cronic error can occur when counsel is absent for a non-de 182 Case: 12-15093 Date Filed: 04/26/2017 Page: 183 of 281

minimis part of a “critical stage” of trial.3 But even if it cannot, counsel’s absence

during a non-de minimis part of trial causes a “breakdown of the adversarial

process,” which 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 657-58. I explain each of these manifestations of Cronic error,

in turn, below.

A. The denial of counsel during only part of a “critical stage” can rise to the level of Cronic error.

1. A “critical stage” is a discrete and readily identifiable, critically important unit of trial.

I agree with the Majority that a “critical stage” cannot consist of a single

question and answer or even several questions and answers from a single witness.

Maj. Op. at 28. Rather, for the reasons the Majority opinion describes, a “critical

stage” must be a discrete and readily discernible part of the trial. See id. at 30-31.

A “critical stage” of trial also “h[olds] significant consequences for the

accused. Bell v. Cone, 535 U.S. 685, 696 (2002). For example, in discussing

Cronic error that arises when “the accused is denied counsel at a critical stage of

3 As I discuss later in this concurrence, Cronic speaks in terms of circumstances that result in an “actual breakdown of the adversarial process” and that are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 466 U.S. at 657- 68. The absence of counsel for a very brief period does not effect these consequences, so the denial of counsel during part of a critical stage of trial that Cronic speaks of must be more than de minimis.

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. . . trial,” the Supreme Court has identified as “critical stages,” among others,

arraignment, Hamilton v. Alabama, 368 U.S. 52, 54 (1961), the preliminary

hearing, White v. Maryland, 373 U.S. 59, 60 (1963), closing argument, Herring v.

New York, 422 U.S. 853, 865 (1975), and recess, Geders v. United States, 425 U.S.

80, 91 (1976).

Here, the Majority opinion does not dispute that Roy was denied counsel

while the trial court admitted directly inculpatory evidence in his counsel’s

absence. Nor does the Majority opinion appear to contend that the taking of

directly inculpatory evidence is not, as a whole, a “critical stage” of trial within the

meaning of Cronic. And it could not.

As Judge Wilson points out, it is hard to envision a stage of trial that holds

more “significant consequences” for the defendant, Bell, 535 U.S. at 696, than the

taking of directly inculpatory evidence. See Wilson Op. at 240-43; see also Perry

v. Leeke, 488 U.S. 272, 287 (1989) (Marshall, J., dissenting) (“‘[I]t is difficult to

perceive a more critical stage . . . than the taking of evidence on the defendant’s

guilt.’”) (quoting Green v. Arn, 809 F.2d 1257, 1263 (6th Cir. 1987)). In the

absence of inculpatory evidence, conviction is a legal impossibility because the

defendant is presumed innocent until a jury finds that the government has

presented sufficient evidence to establish guilt beyond a reasonable doubt. That

cannot be said of other stages of trial, such as closing argument. And though a jury

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can return a guilty verdict without hearing closing argument by the prosecution, we

have nonetheless held that closing arguments constitute a critical stage of trial. See

Hunter v. Moore, 304 F.3d 1066, 1069-70 (11th Cir. 2002).

2. The denial of counsel during only part of a “critical stage” can rise to the level of Cronic error.

Though the Majority opinion does not dispute that the taking of inculpatory

evidence meets the definition of a “critical stage” of trial, it asserts that the

Supreme Court’s decision in Cronic “limited the presumption of prejudice to cases

where defense counsel” was absent “during an entire ‘stage of [the] trial.’” Maj.

Op. at 22, 29, 32 (emphasis added) (quoting Cronic, 466 U.S. at 659)). But while

the Majority opinion rejects the idea that counsel’s absence for less than an entire

critical stage can constitute Cronic error, the Majority opinion nonetheless

acknowledges that structural error can occur in those circumstances. See id. at 32-

34, 60-61.

The Supreme Court has never held that the absence of counsel for part, but

not all, of a critical stage of trial does not constitute structural error. First of all, it

is not even clear that Cronic’s language supports the Majority opinion’s reading of

Cronic to so limit the presumption of prejudice. The opinion speaks of the denial

of counsel “at a critical stage of . . . trial,” 466 U.S. at 659 (emphasis added), not

“throughout” a “critical stage.” And the denial of counsel for part of a critical

stage is nonetheless the denial of counsel “at a critical stage.” 185 Case: 12-15093 Date Filed: 04/26/2017 Page: 186 of 281

But more significantly, this language offers but one angle from which a

court can approach the problem of defining structural error in denial-of-counsel

cases. In no case where the Supreme Court has found structural error concerning

the right to counsel has the Court held that the absence of counsel for the entirety

of a critical stage is a necessary prerequisite for a finding of structural error.

Instead, the cases to which the Majority opinion refers, and some of the Supreme

Court’s descriptions of them, reflect only that those cases happened to concern

facts involving the absence of counsel throughout the entire critical stage at issue.4

Although the Supreme Court has never considered a case like Roy’s, the

Supreme Court has, at least once, effectively found structural error where the

defendant suffered a deprivation of counsel for less than the entirety of what

appears to be a “critical stage” of the proceedings. In Geders v. United States, 425

U.S. 80 (1976), the defendant was in the middle of his trial testimony when,

despite defense counsel’s objections, the court prohibited the defendant from

conferring with his counsel during a seventeen-hour overnight recess that occurred

in the ten-day trial. Id. at 88.

Without considering specific prejudice in Geders’s case in any way, the

Supreme Court reversed the defendant’s conviction because the order “impinged

4 See, e.g., Holloway v. Arkansas, 435 U.S. 475 (1978) (counsel labored under conflict of interest throughout entire proceeding); White, 373 U.S. at 59-60 (counsel absent for an entire preliminary hearing); Hamilton, 368 U.S. at 52 (counsel absent for entire arraignment).

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upon [the defendant’s] right to the assistance of counsel guaranteed by the Sixth

Amendment.” Id. at 91. As the Court explained,

recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.

Id. at 88. So Geders demonstrates that Cronic error can occur when a deprivation

of counsel lasts for only part of a “critical stage.”

The Majority opinion attempts to distinguish Geders in two ways. Neither is

persuasive.

First, the Majority notes that the opinion never used the terms “critical

stage” or “stage” in its analysis. Maj. Op. at 33. That’s true. Cronic had not been

decided at that time, so Geders mentions neither “critical stages” nor “structural

error.” But the Supreme Court has since indicated that it views Geders as part of

its structural-error—and particularly the Cronic variety of its structural-error—

jurisprudence.

Indeed, in Cronic itself, the Supreme Court specifically described its

reasoning in Geders as having “found constitutional error without any showing of

prejudice when counsel was either totally absent, or prevented from assisting the

accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25 187 Case: 12-15093 Date Filed: 04/26/2017 Page: 188 of 281

(emphasis added). The fact that the Court did not use the terms “critical stage” or

“stage” in Geders itself therefore does not somehow make Geders any less of an

example of a deprivation of counsel that is presumptively prejudicial despite

lasting through only part of a critical stage.

The Court’s ruling in Strickland v. Washington, 466 U.S. 668 (1984),

reinforces this point about the relationship between Geders and Cronic. Strickland

incorporates by reference Cronic’s citation to Geders when it says, “Actual or

constructive denial of the assistance of counsel altogether is legally presumed to

result in prejudice.” 466 U.S. at 692 (citing Cronic, 466 U.S. at 659 n.25 (citing

Geders, 425 U.S. at 80)). The Majority opinion cites this sentence from Strickland

and emphasizes the word “altogether” to support its theory that the Cronic

exception applies only when counsel is absent for an entire “critical stage.” See

Maj. Op. at 26-27.

But Geders plainly does not fit that bill. In light of this fact and the specific

issue that Strickland considered (ineffectiveness of counsel, not counsel’s actual

absence for any length of time), the quoted Strickland sentence does not support

the proposition that any presumptively prejudicial denial of counsel must last

throughout an entire critical stage to be structural error. Rather, the Court in

Strickland merely contrasted absent-counsel cases under Cronic with the situation

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where counsel is present and functioning throughout the trial but may be

ineffective in some way.

Second, the Majority opinion characterizes Geders as “one of a line of

decisions presuming prejudice where a defense attorney was prevented from, or

impeded in, rendering assistance of counsel to his client because of an

unconstitutional statute or court order.” Id. at 33-34 (citing Perry, 488 U.S. at 279-

80). This description is accurate as far as it goes, but it does not justify the

Majority opinion’s subsequent conclusion that Geders is simply a government-

impediment case. Nor does it support the Majority opinion’s position that “[t]he

. . . statutory or court-ordered interference exception to the prejudice requirement

that was applied in Geders . . . does not apply in this case,” id. at 34, even setting

aside for the moment the fact that Cronic itself cites Geders in support of its

critical-stage analysis. See Cronic, 466 U.S. at 659 n.25.

Rather, Geders demonstrates that government impediment will nearly

always, if not always, occur in some form in cases involving Cronic error. Among

other descriptions, the Supreme Court has summarized Geders as a case “where [it]

found a Sixth Amendment error without requiring a showing of prejudice” because

Geders involved a criminal defendant “who had actually . . . been denied counsel

by government action.” Bell, 535 U.S. at 696 n.3.

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That also happened in Roy’s case. Starting trial and taking directly

inculpatory evidence when the defendant’s counsel is absent—even

inadvertently—likewise deprives a defendant of assistance of counsel through

“government action.” It makes no difference whether the court, 5 the prosecution,6

or defense counsel bears blame for counsel’s absence.7 “Our Constitution places

in the hands of the trial judge the responsibility for safeguarding the integrity of

the jury trial,” United States v. Gainey, 380 U.S. 63, 68 (1965) (emphasis added),

which includes “the duty of seeing that the trial is conducted with solicitude for the

5 Here, the court began trial a minute earlier than the scheduled recess ended. Counsel certainly should have been present at that point, and efficiency and promptness are praiseworthy qualities in a district court. Nevertheless, if blame were relevant—it’s not for the reasons I have mentioned—a court that starts trial before the end of a scheduled recess, when counsel in a single-defendant trial is absent, is not entirely without fault in the deprivation. 6 Nevertheless, “[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law.” Berger v. United States, 295 U.S. 78, 88 (1935). Consequently, the prosecutor has an independent responsibility to ensure that trial does not proceed when defense counsel is not present. 7 That is not to say that counsel who is late may not be sanctioned. It is certainly fair and appropriate for a judge to expect attorneys to be on time. When an attorney is late, the resulting delay unnecessarily takes up the court’s precious time and unfairly impinges on the jury’s time. Of course, sometimes circumstances beyond an attorney’s control can occur. Nothing in the record indicates that defense counsel in Roy’s case was chronically late for trial or regularly returned late from recesses. If it did, sanctions of some type might well be in order. But even if they were, “[t]here are other ways to deal with the problem . . . short of” denying the defendant his counsel during the taking of directly inculpatory evidence. Cf. Geders, 425 U.S. at 89. For example, the court could monetarily sanction counsel outside the presence of the jury, or, if counsel is court-appointed, the court could remove counsel from the approved Criminal Justice Act list. But counsel’s tardiness alone cannot justify denial of a defendant’s right to counsel. Of course, if a defendant affirmatively schemes to introduce reversible error through his counsel’s absence, that is a different matter and may constitute a waiver of the right. The record contains no evidence that that is the situation here.

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essential rights of the accused,” Glasser v. United States, 315 U.S. 60, 71 (1942),

superseded on other grounds by statute as recognized in Bourjaily v. United States,

483 U.S. 171, 181 (1987). Necessarily, then, “[t]he trial court should protect the

right of an accused to have the assistance of counsel.” Id.

This makes perfect sense: the court alone enjoys control over the trial

proceedings, including when to start, stop, and resume trial. And trial simply

cannot proceed without the court’s actions in allowing it to do so. After all, the

government, or even the defense, cannot call a witness to the stand and begin

questioning when the trial judge is not present. Because of the judge’s essential

role in convening trial, when a court conducts trial in defense counsel’s absence,

government action has necessarily deprived a defendant of his right to counsel

during trial. Inevitably, then, government impediment likely will always be

relevant in absent-counsel cases.

But government impediment alone is not enough to explain why the error in

Geders was structural. If it were, the error in Roy’s case would be structural

without regard to the length of his counsel’s absence from trial. Indeed, the

Majority probably would agree we should not conclude, based on Geders, that any

government interference with the right to counsel always triggers structural error

under any circumstances for essentially the same reasons the Majority opinion

concludes that counsel’s absence for less than a “substantial portion of the trial” is

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not structural. See Strickland, 466 U.S. at 686 (noting that “[g]overnment violates

the right to effective assistance when it interferes in certain ways,” but not

necessarily all ways, “with the ability of counsel to make independent decisions

about how to conduct the defense”) (emphasis added). Consequently, Geders

supports the notion that structural error—including Cronic error—can occur when

an error lasts for only part of a critical stage.

In sum, the absence of counsel during part of a “critical stage” can constitute

Cronic error.

B. “[A]n actual breakdown of the adversarial process” results in Cronic error because the breakdown amounts to “circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

The question remains: how long of an absence during the taking of

inculpatory evidence can be tolerated before the absence results in “circumstances

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

particular case is unjustified”?

Unfortunately, as far as I can tell, no magical formula can tell us in every

given case precisely where the breaking point is. But that does not mean we

cannot meaningfully draw a probability line. After all, when we speak of structural

error, we are talking about probabilities, not certainties. We must therefore

conduct a probability assessment without respect to the particular facts of a given

case because errors qualify as structural categorically. See Neder, 527 U.S. at 14. 192 Case: 12-15093 Date Filed: 04/26/2017 Page: 193 of 281

1. In the most basic and literal way, the denial of counsel in a single-defendant case during the taking of directly inculpatory evidence undermines the adversarial process itself.

To conduct our probability assessment, we begin by reviewing why the

Supreme Court delineated a category of structural errors in the first place: to make

certain that the constitutional framework of procedural protections necessary for a

fair trial remains intact. The Court was careful to note this broader goal in Cronic

itself, in the specific context of the right to counsel: “the right to the effective

assistance of counsel is recognized not for its own sake, but because of the effect it

has on the ability of the accused to receive a fair trial.” 466 U.S. at 658. So a

presumptively prejudicial error is one that is highly likely to have “some effect . . .

on the reliability of the trial process.” Id.

In other words, it is one that is highly likely to “affect[] the framework

within which the trial proceeds.” Fulminante, 499 U.S. at 310. When we speak of

this “framework,” we refer at a minimum to the anatomical features of the basic

trial the Constitution envisions, unless a defendant chooses otherwise: an impartial

jury, properly instructed on the prosecution’s burden of proving the defendant

guilty beyond a reasonable doubt, see Sullivan v. Louisiana, 508 U.S. 275 (1993);

an impartial judge, see Rose, 478 U.S. at 577 (citing Tumey v. Ohio, 273 U.S. 510

(1927)); and, of course, the “Assistance of Counsel for . . . defence,” U.S. Const.

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amend. VI; see Cronic, 466 U.S. at 653 n.7 (1984) (citing Gideon v. Wainwright,

372 U.S. 335, 344 (1963)).

The significance of Cronic—and the defining feature of “Cronic error”—lies

in identifying a particular way in which denial of counsel so seriously affects the

defendant’s ability to receive a fair trial that prejudice must be presumed. Under

Cronic, a denial of counsel requires the presumption of prejudice when “an actual

breakdown of the adversarial process” occurs during trial. Id. at 657-58. “[I]f the

process loses its character as a confrontation between adversaries,” id. at 656-57,

then the framework for trial envisioned by the Constitution collapses. See

Fulminante, 499 U.S. at 310; see also Framework, The American Heritage

Dictionary of English Language (4th ed. 2000) (defining “framework” as a

“structure for supporting . . . something else”).

So our line must account for the crucial role that counsel plays in our trial

framework. At no time is this role more important than during the taking of

inculpatory evidence. Indeed, the taking of inculpatory evidence is perhaps the

most critical part of the trial. Wilson Op. at 241-43. Only evidence can convict an

accused. So any tolerable absence cannot be too great before a trial loses its

structural integrity as a “trial” under our Constitution. See Cronic, 466 U.S. at

656-59.

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When counsel is absent for any non-de minimis period during the taking of

evidence, it is also, no doubt, obvious to the jurors and any spectating members of

the public as well. This problem likewise causes dangerous cracks in our trial’s

foundation because it conflicts with the court’s “independent interest in ensuring

that criminal trials are conducted within the ethical standards of the profession and

that legal proceedings appear fair to all who observe them.” Gonzalez-Lopez, 548

U.S. at 152 (emphasis added) (internal quotation marks omitted); see Wilson Op. at

263 (quoting Indian v. Edwards, 554 U.S. 164, 177 (2008) (citation omitted)).

A lengthy absence of counsel may, as Judge Wilson points out, see id. at

236-37, cause the jury to develop its own ideas about the significance of defense

counsel’s absence from trial—that defense counsel may not believe in the

defendant’s case, that the court thinks so little of the defendant or his counsel that

it does not deem it worthwhile to wait for counsel before beginning, that the case

itself is unimportant and not worthy of the formality otherwise attached to criminal

trials, or that any number of other unfair ideas justify resuming trial in the absence

of defense counsel. While I do not suggest that juries do not follow instructions to

consider only the admitted evidence, that does not mean that factors such as these

have no subconscious effect on their thinking. Indeed, I see no reason why these

unfair prejudices would be any less threatening to the rights of the accused than the

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ones that the Federal Rules of Evidence explicitly seek to avoid. See, e.g., Fed. R.

Evid. 403.

Nor does the fact that a record of what happened while our judicial structure

caved in on itself during the absence of counsel somehow remedy this framework

problem. See Maj. Op. at 64 (suggesting that the fact that what counsel missed in

his absence can be determined “should bear heavily on whether to presume

prejudice”). So in order to account for the trial-framework problem, any absence

must be brief to avoid rising to the level of Cronic error.

Yet Cronic’s use of the phrase “an actual breakdown of the adversarial

process” contemplates more than the momentary unavailability of counsel. As

Cronic explains, “The right to the effective assistance of counsel is . . . the right of

the accused to require the prosecution’s case to survive the crucible of meaningful

adversarial testing.” 466 U.S. at 656. And “meaningful adversarial testing” can

occur at trial even if counsel is absent for a brief period.

Indeed, some absences may be so short that they cannot fairly be viewed by

any measure as affecting the framework within which the trial proceeds because

defense counsel is present to provide assistance throughout literally nearly all of

trial. To take an extreme example, if counsel misses five seconds of testimony, the

trial structure itself does not collapse. Rather, the trial maintains its character as an

adversarial proceeding. Little occurs in counsel’s absence, and we can easily

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evaluate the significance of the five seconds’ worth of testimony taken. A jury is

similarly unlikely to draw negative inferences from such an absence. Presuming

prejudice under these circumstances makes little sense. The same is true of

slightly longer absences, up to a few minutes. For the reasons I have discussed,

though, soon after that, counsel’s absence necessarily begins to cause “an actual

breakdown of the adversarial process,” since our trial framework can withstand

one of its structural pillars missing for only so long before it starts to crumble

irreparably. See Cronic, 466 U.S. at 657-58.

2. Evaluating the effects of counsel’s absence during the taking of inculpatory evidence at a single-defendant trial becomes challenging or impossible the longer the absence persists.

Second, we must draw our line at a point before the absence has lasted long

enough to interfere with our ability to assess its effects. See Gonzalez-Lopez, 548

U.S. at 149 n.4 (noting that “the difficulty of assessing the effect of the error” is a

basis for identifying structural error). As with the trial framework’s tolerance of

counsel’s absence, that point arrives soon after the absence begins.

Although the Majority opinion concludes that the harm resulting from

counsel’s absence is limited to the erroneous admission of evidence, see Maj. Op.

at 54-55 (quoting Satterwhite v. Texas, 486 U.S. 249, 257-58 (1988)), that

conclusion does not recognize either the harm to the trial framework that I have

discussed above or the harm to the full scope of counsel’s representation that can

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occur when more than a brief absence happens.8 Judge Wilson eloquently makes

these points in his Dissent. See Wilson Op. at 238-40.

As Judge Wilson notes, see id., counsel’s responsibility during trial does not

consist solely of keeping out objectionable evidence. Defense counsel orchestrates

the entire defense, of which challenging objectionable evidence is but a single part.

8 The Majority opinion’s reliance on Fulminante, 499 U.S. at 306-07, and cases it cites to demonstrate that the erroneous admission of evidence is subject to harmless-error review is flawed for the same reasons. See Maj. Op. at 76-77. The kinds of error at issue in Fulminante and the cases it cites tell us nothing about whether the absence of counsel during part of trial constitutes structural error. Not one of the opinions identified in Fulminante indicates that counsel was not present at the actual trial, when the challenged evidence against the defendant was admitted. So when the errors in those cases occurred, the structural framework of the trial was intact and counsel was aware of and able to confront the fallout from the erroneous admission of evidence, unlike when an absence of counsel occurs in a single-defendant trial during part of the taking of directly inculpatory evidence. The Majority opinion’s reliance on Florida v. Nixon, 543 U.S. 175 (2004), Bell, 535 U.S. at 688, and Cronic, 466 U.S. 648, suffers from a similar problem: counsel was present at trial when the challenged actions occurred. In fact, it was counsel’s actions during his presence at trial that were at issue in those cases. Similarly, counsel was present at trial when the errors happened in all of the other cases the Majority opinion cites in support of its position that harmless-error analysis applies to the absence-of-counsel error in all but those cases where counsel was absent for a substantial portion of the trial. See Maj. Op. at 82-93 (citing Hinton v. Alabama, __ U.S. __, 134 S. Ct. 1081 (2014) (per curiam); Harrington v. Richter, 562 U.S. 86 (2011); Banks v. Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 U.S. 263 (1999); United States v. Bagley, 473 U.S. 667 (1985); Jones v. Butler, 778 F.3d 575 (7th Cir. 2015); Barwick v. Sec’y, Fla. Dep’t of Corr., 794 F.3d 1239 (11th Cir. 2015); United States v. Travillion, 759 F.3d 281 (3d Cir. 2014); Gissendaner v. Seaboldt, 735 F.3d 1311 (11th Cir. 2013); Roberts v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1086 (11th Cir. 2012); Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271 (11th Cir. 2012); Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320 (11th Cir. 2012); United States v. Orr, 636 F.3d 944 (8th Cir. 2011); Pietri v. Fla. Dep’t of Corr., 641 F.3d 1276 (11th Cir. 2011); Moore v. Marr, 254 F.3d 1235 (10th Cir. 2001); Fugate v. Head, 261 F.3d 1206 (11th Cir. 2001); Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995); Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989)). Indeed, “[h]armless-error analysis . . . presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Rose, 478 U.S. at 578 (emphases added). So the error that happens when counsel is absent at trial when evidence is entered in error is different in quality and type than the kind that happens when counsel is present.

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Among other things, in the heat of trial, defense counsel must make necessary

adjustments to the defense strategy in real time, in light of the happenings in court;

tailor cross-examination of witnesses, in part, to the witnesses’ testimony on direct

examination during trial; evaluate on an ongoing basis the advisability of putting

on and the contents of any defense case, including presenting the defendant to

testify on his own behalf; determine whether to address and, if so, how to account

during closing argument for evidence admitted during trial; respond to questions

and concerns of his client; clear up any misunderstandings his client may have; and

detect and respond to cues from the jury’s demeanor. Cf., e.g., Van Patten, 552

U.S. at 127 n.* (Stevens, J., concurring). When counsel is absent, no one is doing

any of these things, and, if the absence extends for much more than a few minutes,

all of these functions can be impeded even upon counsel’s return.

The Majority opinion’s conclusion that the harm incurred during counsel’s

non-de minimis absence is limited to the erroneous admission of evidence also

ignores the realities of trial. Trial is not like a brick wall, made up of many

fungible parts that can be easily interchanged and reordered with necessarily the

same end result. Trial is a living, developing thing. See Geders, 425 U.S. at 86

(“A criminal trial does not unfold like a play with actors following a script; there is

no scenario and can be none[;] . . . complexities and contingencies [are] inherent in

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the adversary process.”). What happens or does not happen at one point of a trial

can deeply affect the proceedings that follow.

As a result, in a single-defendant trial, the harm from a non-de minimis

absence of counsel is not confined to a simple erroneous admission of evidence at

trial. Rather, the erroneous admission of evidence in counsel’s absence is but one

manifestation of the harms counsel’s absence inflicts in such circumstances, much

like a cough is often but one symptom of tuberculosis. Considering only the effect

of erroneously admitted evidence during counsel’s non-de minimis absence is a lot

like treating a tuberculosis patient with nothing more than cough drops.

Nor does the Majority opinion’s observation that many of the errors that

might result from counsel’s non-de minimis absence are themselves subject to

harmless-error review (including lost objections, “hampered cross-examination,”

and lost impeachment arguments) remedy the assessment problem. Maj. Op. at 73-

93. Rather, this error-by-error piecemeal analysis misses the forest for the trees: as

counsel’s absence grows longer, we cannot know the precise brew of constitutional

error that’s been allowed to ferment. The Majority opinion would have us hold the

balance of error in equipoise and analyze each particular type of error on its own.

But as the absence grows longer, there is no control for the other types of error that

occurred because of counsel’s absence. We cannot assess the magnitude of a

particular type of error in light of the rest of the evidence, as we must in harmless-

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error review, because in these circumstances, counsel’s absence injected an

unknowable concoction of error into the trial.

Notably, the speculation in which we must indulge when a non-de minimis

absence occurs is not the type of guided speculation we engage in under, for

example, Strickland, 9 when we evaluate whether counsel’s ineffective choice may

9 While we may assess the effect of ineffective counsel, evaluating the effect of counsel’s absence when it rises to the level of Cronic error is another matter altogether. When counsel is present but allegedly ineffective, a transcript of what she did or did not do exists. So we can compare the choices she actually made against the broad spectrum of alternatives a reasonably competent attorney could have pursued. And we have a record of what counsel actually did during the entire trial—including not only how counsel responded to the erroneous admission of evidence but also how counsel conducted the rest of the trial after the error occurred. Put simply, we have the tools to allow us to evaluate the effects of the error on the actual defense, in light of a trial record created when the proceedings met the structural definition of a constitutional “trial.” As explained above, however, that is not the case when counsel in a single-defendant trial is absent. Comparison of Cronic and Strickland is also useful for another reason: it vividly demonstrates some of the other differences between the non-de minimis absent-counsel error that makes Cronic error structural error and the ineffective assistance of counsel that makes Strickland error trial error. In Strickland—significantly, issued on the same day as Cronic—the Supreme Court set up a dichotomy between cases involving the “[a]ctual or constructive denial of the assistance of counsel altogether,” see supra at 187, which fall within Cronic’s purview, and those where counsel was present throughout trial but arguably ineffective, which the teachings of Strickland govern. 466 U.S. at 692-93. We presume prejudice in cases involving the “[a]ctual or constructive denial of the assistance of counsel altogether” because prejudice is “so likely that case-by-case inquiry into prejudice is not worth the cost.” Id. at 692. And violations in this group of cases “involve impairments of the Sixth Amendment right that are easy to identify and . . . easy for the government to prevent.” Id. In contrast, cases where counsel was present but arguably ineffective concern alleged errors that the government is not responsible for, is often not able to identify while they are occurring, and is not able to prevent. Id. at 693. And unlike error arising from the absence of counsel, alleged errors of ineffective assistance “cannot be classified according to likelihood of causing prejudice” because they come in so many varieties. Id. As the Court explained, “an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Id. As a result, ineffective assistance cannot be defined precisely enough to put defense attorneys on notice of the conduct to avoid. Id. But the court and the prosecution can easily identify and avert the taking of directly inculpatory evidence in the absence of defense counsel in a single-defendant trial by simply electing not to proceed without defense counsel present.

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have prejudiced the defendant’s case. Instead, no record exists regarding what

counsel did or did not do, and we have nothing to compare to the vast range of

choices a reasonably competent attorney could have made. We must entirely

imagine the many options available to competent counsel throughout the duration

of counsel’s absence—a task that would be sure to miss some viable alternatives.

Then we must use our imaginations to guess how each possible choice might have

caused counsel to modify his approach to the rest of the defense at trial. This is

pure speculation, three or four times removed from the circumstances

contemplated in Strickland.

Then—and only then—do we arrive at the next part of the speculation: how

counsel’s imagined Neverland 10 performance may have affected the outcome of

the trial. This is like trying to guess how going back in time would affect the

space-time continuum. 11 But our Constitution does not abide a world of imagined

10 J.M. Barrie, Peter Pan, http://www.literatureproject.com/peter-pan/peter-pan_1.htm (last visited Apr. 13, 2017) (on file with the Eleventh Circuit Clerk’s Office). 11 See Back to the Future (1985); Back to the Future Part II (1989); Back to the Future Part III (1990). As Christopher Lloyd’s character Dr. Emmett Brown explained in describing the range of possible consequences, going back in time could have virtually no effect on future events, or it could “cause a chain reaction that would unravel the very fabric of the space time continuum, and destroy the entire universe!” Back to the Future Part II, as quoted at http://www.imdb.com/title/tt0096874/quotes (last visited Apr. 13, 2017) (on file with the Eleventh Circuit Clerk’s Office). For a more technical explanation of the space-time continuum, see https://einstein.stanford.edu/content/relativity/q411.html (last visited Apr. 13, 2017) (on file with the Eleventh Circuit Clerk’s Office).

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lawyers in alternative universes when it comes to a right so dear as that of

“Assistance of Counsel for [an accused’s] defence.”

Rather, our system can tolerate only a brief absence before our ability to

evaluate the effects of the absence enter this speculative realm. Nevertheless,

some absences are so brief—a few seconds or even minutes—that the effects are

not necessarily incapable of being evaluated. The types of prejudice that might

occur under these circumstances—a particularly prejudicial line of questioning, the

introduction of an especially prejudicial exhibit, an unfair characterization, etc.—

are different in kind than the subtler, more insidious harms introduced by the

longer absence of counsel in a single-defendant trial and are therefore susceptible

of harmless-error review. Counsel’s viable options for dealing with what occurred

in his absence under such circumstances are likewise far more limited than once

the absence extends much more than a few minutes. A very brief absence allows

us to identify what counsel’s options might be upon her return without resorting to

rank speculation. But the universe of options expands exponentially as the period

of absence grows.

So while cutting out the localized cancer of a very brief absence is possible,

the effects of an absence metastasize throughout the trial in ways that are no longer

readily identifiable once the length of absence lasts longer than a few minutes. As

a result, unlike with a very brief absence, the likelihood of prejudice from an

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absence that lasts more than a few minutes substantially increases, and the ability

to identify the resulting prejudice markedly decreases. This factor likewise

supports drawing a line that differentiates absences that are just a few minutes from

those lasting longer.

3. Because the taking of directly inculpatory evidence in counsel’s absence in a single-defendant trial quickly becomes highly likely to result in prejudice, and detecting the absence of counsel in a single-defendant trial is extremely easy, the point where it is not worth litigating the effects of this category of error in a given case must come not long after counsel’s absence begins.

The miniscule costs associated with setting the threshold for structural error

in absence-of-counsel cases shortly after counsel’s absence begins in a single-

defendant trial also warrants drawing a line not long after counsel’s absence

begins.

For the reasons I have already described, counsel’s absence in a single-

defendant trial during the taking of directly inculpatory evidence will quickly

introduce a significant and unquantifiable mix of prejudice into a single-defendant

trial. Yet absent defense counsel during the taking of inculpatory evidence in a

single-defendant trial is an error that is “easy to identify” and therefore “easy for

the government [including the court and the prosecution] to prevent”—not

coincidentally another hallmark of structural error. Strickland, 466 U.S. at 692.

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The utter lack of any defense counsel at the start of trial proceedings should be

immediately obvious to both the judge and the prosecution.

First, we are not speaking of some trivial technical requirement. We are

talking about a fundamental constitutional right that should be—and no doubt is—

always at the tops of the minds of the trial judge and the prosecution during trial:

the right to counsel. Indeed, as I have noted, the court has an affirmative

obligation to protect a defendant’s right to counsel during trial. See supra at 189-

90 (citing Gainey, 380 U.S. at 68; Glasser, 315 U.S. at 71).

Second, we are not looking for a needle in a haystack. Visually, the absence

of counsel is stunningly obvious. Detecting the absence of sole counsel in a single-

defendant trial is as straightforward as looking at the defense table. When no

defense counsel is present in the courtroom, only one person sits at the defense

table—the defendant—and counsel’s absence is conspicuous.

Third, judges can and often do ask counsel for both parties whether they are

ready to proceed before bringing in the jury. Even if a judge and prosecutor do not

notice the absence of counsel before the inquiry, the lack of a response from

defense counsel at that time would certainly alert them to counsel’s absence.

But perhaps the greatest indication that the error is “easy to identify”

consists of the fact that neither the Majority opinion nor the parties are able to cite

a single case other than Roy’s where directly inculpatory evidence was taken in the

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absence of sole counsel in a one-defendant trial. Simply put, this error is so

obvious that it quite literally almost never happens. 12 And because district courts

and the prosecution are so well attuned to the need for counsel’s presence in a

single-defendant trial that they are highly likely to notice counsel’s absence

immediately or, at worst, very shortly after trial resumes, drawing the structural-

error line not long after counsel’s absence begins in a single-defendant trial

imposes virtually no costs.

4. Consideration of all of the factors that cause counsel’s absence during a single-defendant trial to merit a presumption of prejudice supports drawing the line between trial error and structural error at counsel’s absence that lasts for more than ten minutes or 1% of the combined “critical stages” of trial.

All of the factors in determining when a presumption of prejudice is

appropriate in absent-counsel cases have at least one thing in common: they all

point to a very low threshold of tolerance for absence of counsel during a “critical

stage” of a one-defendant trial before the absence crosses the line from trial error

to structural error. But that threshold is not zero. Rather, for the reasons I have

explained, harmless-error analysis can effectively and appropriately be performed

when counsel’s absence lasts only a few minutes.

12 For this reason, the Majority opinion’s invocation of United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997), see Maj. Op. at 58-60, actually bolsters the point. Even in seven months of trial, the opinion does not indicate that counsel was absent for a single second of the taking of directly inculpatory evidence.

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So the probability line where an absence becomes long enough to create

“circumstances that are so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified” must be drawn soon after counsel’s

absence spans more than a few minutes. And since this line must be ascertainable

in any case without requiring any type of actual prejudice review of the record, I

would draw the line when counsel is gone in a single-defendant trial at the lesser of

either more than ten minutes or more than 1% of the combined critical-stage

portions of trial. When ten minutes constitutes 1% or less of the combined critical

stages of trial, the period is brief enough that the admitted evidence is relatively

little, counsel can quickly and easily learn what he has missed and adjust his

strategy accordingly, and the appearance of fairness and integrity in the trial is not

undermined. A jury may reasonably infer, for example, that counsel has simply

stepped out to use the restroom or check on a witness.

Though the period where an absence truly becomes structural error is surely

greater than ten minutes or 1% of the taking of evidence, the probability of

diminishing returns from attempting to conduct a prejudice analysis begins to

increase significantly not long after counsel’s absence lasts for ten minutes or 1%

of the trial. And since we cannot identify a strict cutoff that necessarily includes

only trial errors on one side and only structural errors on the other, we must err on

the side of including some trial-error absences in the structural-error category,

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rather than the other way around. After all, we are discussing a constitutional

violation that is serious enough and the effects of which are difficult enough to

assess that where it is found, prejudice is presumed. And, significantly, it is an

error that is easily preventable, so the costs of setting a low threshold are

negligible.

When we apply this line to Roy’s case, we find that his case involves an

absence that does not cause a breakdown of the adversarial process or any other

damage to the fundamentally fair character of his trial. The counsel’s absence in

Roy’s case did not create “circumstances that are so likely to prejudice the accused

that the cost of litigating their effect in a particular case is unjustified.”

Roy’s counsel was absent for a total of seven minutes, so he was missing for

less than ten minutes of the total of all critical stages of trial. And as a percentage

of the total critical stages of trial, those seven minutes amounted to less than 1%.

Counsel’s absence therefore falls on the trial-error side of the error line. 13 As a

result, we conduct harmless-error review in Roy’s case.

13 Judge Wilson and Judge Martin take issue with drawing a precise, numerical line between trial error and structural error. That is a fair point. But Cronic expressly calls for a probability assessment. And the mere fact that the precise place to draw the line between the two types of error may not be immediately obvious does not mean that a category of absence that constitutes only trial error does not exist. We account for the lack of a readily discernible cutoff by drawing a line that necessarily includes all absences that could fairly be characterized as causing a breakdown of the adversarial process as doing so, even though it will also include some absences that do not so qualify on that side (e.g., 11 minutes in an 8-month trial). The cost of overinclusion in the structural-error category is, as a practical matter, extremely low, given the

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Nevertheless, the mere fact that a case may be susceptible of harmless-error

review does not mean, of course, that any error is necessarily harmless. To the

contrary, where harmless-error review applies, the court must be convinced that

“on the whole record . . . the error . . . [is] harmless beyond a reasonable doubt.”

Rose, 478 U.S. at 583 (citation and quotation marks omitted). If the court cannot

satisfy itself in this way—either because the record suggests that the error was not

harmless beyond a reasonable doubt or because the record as a whole does not

provide sufficient information to allow a determination to be made—even a trial-

error absence will require reversal and remand for a new trial.

But that is not the case here. As the Majority ably explains, the record here

clearly demonstrates that Roy’s counsel’s trial-error absence was harmless beyond

a reasonable doubt.

III. The fact that a brief absence of counsel during part of a “critical stage” of a single-defendant trial quickly rises to the level of Cronic error does not necessarily mean that the same thing is true in a multi-defendant trial.

The Majority opinion worries that recognizing that the structural-error

threshold is low for counsel’s absence during trial in a single-defendant trial means

that the threshold must be set equivalently low in multi-defendant trials. This

fact that holding trial without defense counsel in a single-defendant case almost never happens. See supra at 204-07.

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question is not before us, so I do not offer an opinion on it. Nevertheless, I express

some thoughts as to why I do not share the Majority opinion’s concerns, homing in

on the factors that determine whether an absence of counsel during a critical stage

of trial is structural error in the first place.

Beginning with the basic trial framework, when one or more defense

lawyers are present during a multi-defendant trial, the overall trial structure itself at

least arguably remains intact, even if other defense counsel are absent. That is,

some licensed attorney serves in an adversarial role against the prosecution and

might, as a practical matter, simultaneously assist in the defense of other

defendants while acting on behalf of her own client.14 But when a single defendant

has no counsel whatsoever where directly inculpatory evidence is offered,

courtroom proceedings do not even look like a “trial” as our Constitution envisions

it, and counsel’s absence very quickly rises to the level of Cronic error. No one is

present to assist even theoretically in the accused’s defense.

Second, while the absence of a particular defendant’s attorney is still

ascertainable when multiple defendants and defense counsel are present, one

14 Of course, the Sixth Amendment entitles each defendant to his own counsel. And where counsel labors under an actual conflict of interest at trial, that circumstance constitutes structural error. See Satterwhite, 486 U.S. at 256-57 (citing Holloway, 435 U.S. at 490-91). But many times, multiple defendants’ defenses are not inconsistent with one another. In addition, counsel sometimes agree to cover for each other with their clients’ permission. When these conditions exist, the breakdown in the trial process that might occur otherwise in a single- defendant trial simply does not occur.

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defendant’s sole missing defense attorney at a table of, for example, five

defendants and seven counsel, 15 is not as visually conspicuous as a sole

defendant’s appearance all alone at the defense table during trial. As a result, the

point where the proceedings cease to appear like a constitutional trial to the jury

and public is certainly higher and, depending on the circumstances, possibly non-

existent.

Third, although the effect on the proceedings of a single defendant’s

counsel’s longer absence in a multi-defendant trial may still be challenging and

difficult to assess, at least we can review a record of how some defense counsel

reacted to the questioning, the jury, and, where applicable, the client during the

absence, so our speculation is not necessarily entirely imagined, and some form of

a Strickland-type of analysis of the present attorney’s actions may perhaps be

possible. Similarly, at least the defendant’s absent counsel can consult a

professionally trained, defense-oriented person (a defense attorney who was

present during the absence) about what transpired in his absence, so he can adjust

his defense accordingly. These things are not even possibilities where counsel is

absent for a non-de minimis portion of the taking of inculpatory evidence in a

single-defendant trial.

15 Sometimes a defendant chooses to be represented by more than one attorney.

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Fourth, multi-defendant trials are often significantly longer than single-

defendant trials. If counsel for more than one defendant in a multi-defendant trial

is absent for more than a brief period of the taking of directly inculpatory evidence,

the cost and effort of attempting to evaluate the record for harmless error may be

justifiable in a way that it is not many single-defendant trials.

For these reasons, I respectfully disagree with the Majority opinion that

recognizing Cronic error when counsel is briefly absent during part of a single-

defendant trial dictates that counsel’s brief—or even longer—absence in a multi-

defendant trial would then also necessarily qualify as Cronic error or some other

type of structural error.

IV. The Majority opinion’s solution for determining when counsel’s absence during part of a “critical stage” constitutes structural error is flawed because it is not categorical and because it sets too high a threshold for structural error when counsel is denied during a single-defendant trial.

The Majority opinion holds that counsel’s absence during part of trial rises

to the level of structural error when counsel misses a “substantial portion of the

trial,” determined “on a case-by-case basis considering, among other factors, the

length of time counsel was out, the proportion of the trial missed, and the

significance of what he missed.” See Maj. Op. at 70-71. It further suggests

through its analysis that a “substantial portion of the trial” is a relatively long

period. In my view, both of these conclusions are inconsistent with the Supreme

Court’s jurisprudence on structural error involving the denial of counsel. 212 Case: 12-15093 Date Filed: 04/26/2017 Page: 213 of 281

First, as I have mentioned, the Supreme Court has cautioned against

“import[ing] into the initial structural-error determination (i.e., whether an error is

structural) a case-by-case approach that is more consistent with our traditional

harmless-error inquiry (i.e., whether an error is harmless). Under [the Supreme

Court’s] cases, a constitutional error is either structural or it is not.” Neder, 527

U.S. at 14 (characterizing the Supreme Court’s “traditional . . . approach to

structural errors” as “categorical”).

And this makes sense. If determining in the first place whether a type of

error was structural or trial required an analysis of actual prejudice in a given case,

it would not differ from harmless-error analysis: in any case where error was

actually assessable but was, beyond a reasonable doubt, harmless to the defendant,

the error would be harmless, and in any case where the prejudice inflicted by the

error was either not assessable or demonstrably resulted in prejudice to the

defendant, the error would be harmful.

But that’s not how the dichotomy between structural error and trial error

works. Rather, structural-error jurisprudence recognizes fundamental errors and

requires us to make a probability determination that the existence of that type of

error in general creates “‘circumstances . . . that are so likely to prejudice the

accused that the cost of litigating their effect in a particular case is unjustified.’”

Van Patten, 552 U.S. at 124 (quoting Cronic, 466 U.S. at 658). Engaging in any

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attempt to calculate the actual prejudicial effects of a type of error to determine

whether, in a given case, it qualifies as structural in nature defeats the purpose of

categorizing particular types of errors as structural.

The Majority opinion’s solution to when structural error occurs, however,

expressly calls for “case-by-case . . . consider[ation], [accounting for,] among

other factors, the length of time counsel was out, the proportion of the trial missed,

and the significance of what he missed.” Maj. Op. at 71 (emphasis added). This

approach necessarily requires the court to conduct some type of individualized

assessment of prejudice in a given case to determine whether the error as presented

in that case constitutes structural error, even though the Supreme Court has warned

against delineating the parameters of a category of structural error by assessing the

evidence adduced in a particular case.

Besides this problem, the Majority opinion’s approach employs a balancing

test, so it will necessarily yield conflicting results concerning whether an absence

qualifies as structural error, depending on who applies the test, how the judge

construes each factor, and how she or he weighs the test’s factors. For example,

what length of absence is too long and how do we decide? What proportion of trial

is too great? How do we judge the “significance of what [counsel] missed”? Is

determining the “significance of what [counsel] missed” some form of a mini-

harmless-error inquiry? How do we balance the four expressly named

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considerations against each other? What other factors should be considered, and

how are they weighed in the balance?

And since knowing what counsel missed is “at least as important” a factor as

the other three and “should bear heavily on whether to presume prejudice,” see id.

at 64, does it outweigh a longer absence that comprises a good percentage of the

trial? Different judges applying the substantial-portion-of-the-trial factors will, of

course, arrive at different conclusions about whether structural error has occurred

in any given case—a red flag that the line for structural error has not been

categorically drawn.

Nor does the Majority opinion’s application of the substantial-portion-of-

the-trial test to Roy’s facts provide much guidance. Instead, it simply observes that

we know what counsel missed and reduces counsel’s absence to numbers:

Roy’s counsel missed only seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting recesses and jury deliberations), which is less than one-half of one percent of trial time. He missed only 18 answers that were given by one of the government’s 13 witnesses who collectively gave a total of approximately 2,745 answers, meaning he missed less than one percent of the total. And we know exactly which questions and answers he missed. His physical absence was far more momentary and far less substantial than any in the five cases that our sister circuits have decided under the substantial portion standard. We have no trouble concluding that Roy’s counsel did not miss a substantial portion of the trial.

Id. at 72-73.

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Other than the fact that the Majority opinion adjudged Roy’s counsel’s

absence “far more momentary and far less substantial than any in the five cases

that our sister circuits have decided under the substantial portion standard,” we

don’t know how the Majority weighed the factors against each other; how

“miss[ing] only 18 answers that were given by one of the government’s 13

witnesses who collectively gave a total of approximately 2,745 answers, meaning

he missed less than one percent of the total,” tells us the “significance of what

[counsel] missed” any more than the number of minutes missed and the percentage

of trial missed; what other factors we should consider when conducting this

analysis; or when the fact that a record of what counsel missed exists ceases to

support harmless-error review. And in the cavernous abyss between Roy’s 7-

minute absence and the other circuits’ substantial-portion-of-the trial cases, where

the attorney slept for either more than a day or slept repeatedly for several minutes

at a time throughout the entire trial, we don’t know where a trial-error absence

becomes a structural-error absence.

The Majority opinion’s substantial-portion-of-the-trial test also suffers from

another problem: it significantly undervalues the right to counsel during trial, so it

sets the bar too high for when counsel’s absence crosses the threshold from trial

error to structural error. As I have previously explained, the right to counsel

during trial is essential under our system of justice, and it does not take long for

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counsel’s absence from part of trial to create serious, exponentially multiplying

problems “that are so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” See supra at 194-205; Cronic, 466 U.S.

at 658. For this reason, only a brief absence can be tolerated in a single-defendant

trial before the likelihood of prejudice greatly outweighs the benefits of attempting

to engage in a prejudice analysis.

The Majority opinion turns the significance of the right to counsel during a

single-defendant trial upside down, essentially creating a rule under which

counsel’s absence—even for long periods—constitutes nothing more than trial

error, except in the most extreme circumstances. But the right to counsel—

particularly during trial—is absolutely fundamental to our system of justice. A

single-defendant trial where counsel is absent for more than a very brief period

inflicts great damage upon our system of justice; it is antithetical to it, to our sense

of fairness, and to the reliability of any resulting verdict. Does the fact that we

know what happened when counsel was gone somehow negate the deleterious

effects on the trial framework of a long absence that comprises a good percentage

of the trial? I think not.

And because of the ease with which defense-counsel absences in a single-

defendant trial can and should be prevented, even less justification exists for

tolerating anything more than counsel’s very brief absence. Since the substantial-

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portion-of-the-trial test that the Majority opinion adopts today to determine

whether an attorney’s absence qualifies as structural error does not sufficiently

value the right to counsel during a single-defendant trial, I respectfully disagree

with that standard.

V. Conclusion

So I end where I began. I concur in the Majority’s conclusion that the error

in this case was harmless because it was not long enough to rise to the level of

Cronic error, and the record shows it to have been harmless beyond a reasonable

doubt.

But in a single-defendant trial, the non-de minimis absence of counsel

creates “circumstances that are so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified.” It collapses the

constitutional framework of the trial; is easily identifiable and preventable by the

court and the government; introduces an unknowable mix of error into the trial that

is so likely to prejudice a defendant that assessing its effects in any given case is

not worthwhile; and renders the trial process unreliable amounts to structural error

under Cronic. Based on these considerations, I would draw the line between trial-

error absences and structural-error absences at the point where an absence lasts for

more than ten minutes or 1% of the total “critical stages” of trial. In my view, this

approach comports with Cronic, the categorical nature of structural error as the

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Supreme Court has explained it, and the importance of the right to counsel during

trial..

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WILSON, Circuit Judge, dissenting:

The Constitution guarantees criminal defendants a fair trial. That guarantee

does not require a perfect trial—it simply demands a trial that affords defendants a

few basic protections. The most critical of those protections is the right to counsel.

See United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 2044 (1984) (“Of

all the rights that an accused person has, the right to be represented by counsel is

by far the most pervasive for it affects his ability to assert any other rights he may

have.” (internal quotation marks omitted)). “The very premise of our adversary

system of criminal justice is that partisan advocacy on both sides of a case will best

promote the ultimate objective that the guilty be convicted and the innocent go

free.’” Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 2555 (1975).

Absent defense counsel, the trial process transforms from an adversarial

search for truth to a one-sided prosecutorial campaign. Such a proceeding is

incompatible with the Constitution’s commitment to due process. “While a

criminal trial is not a game in which the participants are expected to enter the ring

with a near match in skills, neither is it a sacrifice of unarmed prisoners to

gladiators.” Cronic, 466 U.S. at 657, 104 S. Ct. at 2046 (internal quotation marks

omitted).

In stark contrast to the adversarial process and attendant protections

demanded by the Constitution, the trial here proceeded while the defendant’s sole

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counsel was absent. The defendant sat alone at counsel’s table in the presence of

the jury; defense counsel was nowhere to be seen. There were no other defendants

or defense counsel present. Nonetheless, the trial judge reconvened the

proceedings earlier than scheduled, and the skilled prosecutor introduced the

testimony of the government’s key witness—a law enforcement computer

forensics expert—with the defendant still alone at counsel’s table. The testimony

was directly inculpatory, used to convict the defendant of federal felony charges

and to sentence him to life in prison.

This type of one-sided proceeding is an affront to the integrity of our system

and a violation of the defendant’s rights to a fair trial and to counsel.

Correlatively, such a serious constitutional error is unique in that it alters the

structure of the trial itself, resulting in consequences that are both immeasurable

and likely extremely prejudicial. For that reason, I believe the error amounts to

structural error, requiring automatic reversal and new, constitutionally-compliant

proceedings. The Constitution does not demand that the defendant go free—rather,

it demands that, prior to being deprived of his liberty, the defendant receive a trial

with the basic protections to which he is entitled.

The Majority, however, does not view the circumstances here as so serious a

constitutional violation and so damaging a blow to the integrity of the trial process

as I do. The disagreement between the Majority and myself centers on the scope

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of structural error and what constitutes Cronic error. A constitutional violation is a

structural error if the violation undermines the basic guarantee of fairness, resulting

in a strong potential for prejudice and immeasurable effects. Cronic error is a

specific type of structural error—it arises when a defendant is denied counsel at a

“critical stage” of the proceedings.

I believe that the denial of counsel during the introduction of inculpatory

evidence by a key prosecution witness constitutes structural error. The guiding

structural-error criteria, as well as Cronic, lead me to this conclusion. By calling

such an error harmless trial error, the Majority affirmatively holds that the

introduction of inculpatory evidence in counsel’s absence is an “unimportant and

insignificant” constitutional error. See Chapman v. California, 386 U.S. 18, 22, 87

S. Ct. 824, 827 (1967). The Majority reaches this conclusion by improperly

performing the structural-error analysis required under Supreme Court precedents.

Because the Majority’s analysis departs from those precedents and reaches a result

at odds with the basic premises of the Constitution, I respectfully dissent.

The combined force of the Fifth and Sixth Amendments of the United States

Constitution guarantees all federal criminal defendants the right to a fair trial.

Under the Fifth Amendment, a fair process is required before a defendant’s liberty

can be taken away. When a trial court impedes a defendant’s ability to obtain the

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“guiding hand of counsel at every step in the proceedings against him,” it violates

the due process guarantee of the Fifth Amendment. See Brooks v. Tennessee, 406

U.S. 605, 612, 92 S. Ct. 1891, 1895 (1972) (quoting Powell v. Alabama, 287 U.S.

45, 69, 53 S. Ct. 55, 64 (1932)). Furthermore, the Supreme Court has repeatedly

emphasized the fundamental nature of the Sixth Amendment right to counsel—it is

this right that preserves the defendant’s other rights and the integrity of the judicial

system itself. See, e.g., Cronic, 466 U.S. at 656, 104 S. Ct. at 2045; Kaley v.

United States, 571 U.S. __, __, 134 S. Ct. 1090, 1107 (2014) (Roberts, C.J.,

dissenting) (“In many ways, [the Sixth Amendment right to counsel] is the most

precious right a defendant has, because it is his attorney who will fight for the

other rights the defendant enjoys.”); see also Stano v. Dugger, 921 F.2d 1125,

1170–71 (11th Cir. 1991) (en banc) (Tjoflat, J., dissenting) (“[T]he right to counsel

is a fundamental component of the criminal justice system” because counseled

representation protects “the very integrity of our system—its fairness, its accuracy

as a truth-seeking process, and thus its ability to accord justice.”).

A criminal defendant who has been denied counsel cannot—by that very

measure—have received a fair trial because “lawyers in criminal courts are

necessities, not luxuries.” Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792,

796 (1963). The Constitution calls on the courts to vigilantly ensure that this right

is upheld, and we, as judges, must “indulge every reasonable presumption against

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waiver” of the right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023

(1938). Indeed, “the right to the assistance of counsel has been understood to

mean that there can be no restrictions upon the function of counsel in defending a

criminal prosecution in accord with the traditions of the adversary factfinding

process that has been constitutionalized.” Herring, 422 U.S. at 857, 95 S. Ct. at

2553.

The admission of inculpatory evidence against a defendant while his counsel

is absent violates these fundamental rights. The core issue presented here is

whether that constitutional violation is structural or trial error. The Supreme Court

has held that all criminal defendants are entitled to a trial free from error that calls

into question the fairness of the proceeding because such an error strikes a blow to

the framework—the structure—of the proceeding itself. See Cronic, 466 U.S. at

657–58, 104 S. Ct. at 2046. This type of constitutional error, known as “structural

error,” occurs when there are “circumstances that are so likely to prejudice the

accused that the cost of litigating their effect in a particular case is unjustified,” id.

at 658, 104 S. Ct. at 2046, or when the effects of the error defy assessment absent

impermissible speculation, see United States v. Gonzalez-Lopez, 548 U.S. 140,

148, 126 S. Ct. 2557, 2564 (2006); Sullivan v. Louisiana, 508 U.S. 275, 281–82,

113 S. Ct. 2078, 2083 (1993) (noting that structural errors are “necessarily

unquantifiable and indeterminate”).

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When structural error occurs, the courts must presume prejudice and reverse

for a new trial. See Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25

(“[Structural error is] constitutional error of the first magnitude and no amount of

showing of want of prejudice w[ill] cure it.” (internal quotation marks omitted)).

Automatic reversal is required because “there are some constitutional rights so

basic to a fair trial that their infraction” infects the entire trial process and “can

never be treated as harmless error.” Chapman, 386 U.S. at 23, 87 S. Ct. at 827–28;

accord Brecht v. Abrahamson, 507 U.S. 619, 629–30, 113 S. Ct. 1710, 1717

(1993). This does not mean a trial on the whole must be unfair for an error to be

structural; rather, structural error exists when the defendant has been denied “a

particular guarantee of fairness.” See Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct.

at 2562.1

1 Gonzalez-Lopez involved the absence of a particular guarantee of fairness—the right to have counsel of one’s choosing at trial. The Court held that the denial of the defendant’s choice of counsel resulted in a structural defect in the proceedings, requiring vacatur of the conviction. Gonzalez-Lopez, 548 U.S. at 152, 126 S. Ct. at 2566. In determining that the denial of counsel of one’s choosing implicates the constitutional guarantee of fairness, the Supreme Court indicated that counsel need not be entirely deprived in order to trigger the Sixth Amendment’s protection. Consequently, Gonzalez-Lopez provides important foundation for this case: if the guarantee-of-fairness consideration was relevant where some counsel was present, just not the one chosen by the defendant, then surely here, where the defendant had no counsel present to protect his constitutional rights, the same guarantee-of-fairness consideration applies. Further, the defendant in this case selected a particular counsel to represent him, and then the court proceeded without that counsel. Thus, the denial of the defendant’s counsel at trial ipso facto denied the defendant the right to have present the counsel that he chose. For these reasons, the circumstances constituting structural error and requiring reversal in Gonzalez-Lopez are sufficiently analogous to the circumstances presented in this case. Cf. Wright v. Van Patten, 552

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The Supreme Court has identified several sets of circumstances that

constitute structural error, including the provision of an erroneous reasonable-

doubt instruction, the denial of the right of self-representation, and the denial of the

right to a public trial. See, e.g., Sullivan, 508 U.S. at 280–81, 113 S. Ct. at 2082;

McKaskle v. Wiggins, 465 U.S. 168, 177–78 & n.8, 104 S. Ct. 944, 950–51 & n.8

(1984); Waller v. Georgia, 467 U.S. 39, 49 & n.9, 104 S. Ct. 2210, 2217 & n.9

(1984). In addition, in Cronic, the Court held that the denial of counsel at a

“critical stage” of trial amounts to structural error. See 466 U.S. at 659, 104 S. Ct.

at 2047. The potential for prejudice when counsel is denied during a critical stage

is so great that fairness demands automatic reversal.

This case involves an important type of structural error—the denial of

counsel. 2 See Gonzalez-Lopez, 548 U.S. at 149, 126 S. Ct. at 2564. As noted

above, structural-error analysis turns on the potential for prejudice and whether the

U.S. 120, 125, 128 S. Ct. 743, 746 (2008) (per curiam) (citing Gonzalez-Lopez in describing Cronic structural error). 2 From the outset, the Majority mischaracterizes the error here as the erroneous admission of particular evidence at trial, which is an error amenable to harmless-error review. See, e.g., Satterwhite v. Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 1798 (1988). But the general admissibility of evidence introduced during defense counsel’s absence is not the issue. Instead, the issue is that a criminal defendant’s sole defense counsel was absent while inculpatory evidence was admitted to the jury. Those are the circumstances that violated the defendant’s constitutional rights here; those are the circumstances that create “a serious risk of injustice.” See Cronic, 466 U.S. at 656, 659 n.25, 104 S. Ct. at 2045, 2047 n.25. Thus, Satterwhite’s rule does not apply because the nature of the harm is not limited to the specific evidence that was erroneously introduced. See Rosenbaum, J., concurring, at 196–97.

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effect of an error is readily assessable. Considering these factors, the absence of

the defendant’s sole counsel during the introduction of inculpatory evidence

undoubtedly constitutes structural error. But, perhaps even more telling, Cronic

also specifically requires a finding that the denial of counsel in these circumstances

amounts to structural error.

The defendant in this case was denied his right to counsel while the jury

heard directly inculpatory evidence, depriving him of a core constitutional

guarantee. As the jury watched, the court departed from the traditional trial

framework of a defendant having counsel by his side while the prosecution offers

evidence against him. Under these circumstances, the denial of counsel yields

strong potential prejudice and the effects of the error are “necessarily

unquantifiable and indeterminate”—gauging the effect requires speculation. Thus,

the circumstances in this case “unquestionably qualif[y] as structural error.” Cf.

Gonzalez-Lopez, 548 U.S. at 149, 126 S. Ct. at 2564 (internal quotation marks

omitted). I broadly address the potential for prejudice and speculative nature of the

effects of this error before turning to the facts of the proceedings below.

A number of Supreme Court cases addressing structural error caused by the

absence of counsel demonstrate that the potential for or likelihood of prejudice is

key to determining which errors are structural. For example, in Hamilton v.

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Alabama, the Court held that counsel’s absence during the defendant’s arraignment

was structural error. 368 U.S. 52, 54–55, 82 S. Ct. 157, 158–59 (1961). In

reaching this determination, the Court did not require that the defendant provide

any evidence that his plea would have been different had counsel been present; that

is, the Court did not consider whether the defendant was actually prejudiced by

counsel’s absence. Reversal was automatic. Id. at 55, 82 S. Ct. at 159. Likewise,

in White v. Maryland, the Supreme Court automatically reversed the lower court

because the prosecution introduced evidence at trial of a guilty plea that the

defendant entered before he was appointed counsel. 373 U.S. 59, 59–60, 83 S. Ct.

1050, 1051 (1963) (per curiam).

These cases make clear that the potential for prejudice is what results in

structural error. 3 Actual prejudice is not required. In Hamilton, the defendant

never indicated that the presence of counsel at the arraignment actually would have

changed the outcome, and the Court did not analyze this possibility. In White, the

potential for prejudice was sufficient to vacate the conviction, even though the

potential prejudice—admission into evidence of the guilty plea—could have been

3 The importance of the potential for prejudice inquiry also manifests in structural error cases outside of the denial-of-counsel context. Most recently, in a recusal case, the Supreme Court indicated that even a “potential for” or “risk of” bias was enough to constitute structural error. See Williams v. Pennsylvania, 579 U.S. ___, ___, 136 S. Ct. 1899, 1905–07 (2016) (noting that “the decision [of a prosecutor] to pursue the death penalty is a critical choice in the adversary process” and reversing based on the risk of bias when a non-recused judge who served as the supervising prosecutor participates in the subsequent judicial proceedings).

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mitigated by counsel’s presence and the opportunity to cross-examine. White is

especially informative for what it ultimately found violative of the right to counsel.

There, the potential prejudice arose from the creation of inculpatory evidence in

counsel’s absence.

If the absence of counsel during the creation of inculpatory evidence was

considered structural error in White, it is also structural error for a court to allow

the admission of inculpatory evidence in counsel’s absence. In both

circumstances, the potential for prejudice arises from the potential for the jury to

hear inculpatory evidence in violation of the defendant’s right to counsel. There is

extreme potential for prejudice against a defendant who is left without counsel as

the prosecution presents the jury with incriminating evidence for its consideration.

If allowing a criminal defendant to “stand alone”—in this defendant’s case, truly,

entirely alone—against the government while the prosecution elicits incriminating

testimony does not constitute a structural defect in the proceedings, it is difficult to

envision what would. See United States v. Wade, 388 U.S. 218, 226–27, 87 S. Ct.

1926, 1932 (1967) (“[I]n addition to counsel’s presence at trial, the accused is

guaranteed that he need not stand alone against the State at any stage of the

prosecution, formal or informal, in court or out, where counsel’s absence might

derogate from the accused’s right to a fair trial.” (footnote omitted)). These

“circumstances . . . are so likely to prejudice the accused that the cost of litigating

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their effect in a particular case is unjustified.” See Cronic, 466 U.S. at 658, 104

S. Ct. at 2046.

The Supreme Court has also indicated that where the impact of a serious

constitutional defect is subject to pure speculation, the defect constitutes structural

error. See Gonzalez-Lopez, 548 U.S. at 149 n.4, 126 S. Ct. at 2564 n.4 (rejecting

the use of a “single, inflexible criterion” for determining structural error and

instead finding that structural error occurred in light of the pure speculation

involved in determining what would have happened but for the error); see also

Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797 (stating that when “the scope of a

violation . . . cannot be discerned from the record, any inquiry into its effect on the

outcome of the case would be purely speculative”); Holloway v. Arkansas, 435

U.S. 475, 490–91, 98 S. Ct. 1173, 1181–82 (1978).

Thus, a key distinction between trial error and structural error is that the

latter occurs where the effect of the error is “necessarily unquantifiable and

indeterminate.” See Sullivan, 508 U.S. at 281–82, 113 S. Ct. at 2083. This is why

structural errors are markedly different from trial errors, which can be

“quantitatively assessed.” Id.; see also Arizona v. Fulminante, 499 U.S. 279, 308,

111 S. Ct. 1246, 1264 (1991). Given the “myriad aspects of representation,” there

are numerous unknowable possibilities that may have been permitted or prevented

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by the participation of an attorney during the prosecution’s introduction of

inculpatory evidence. Cf. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at 2564.

The admission of inculpatory evidence against the defendant in a criminal

trial while counsel is absent from the courtroom is not a trivial error; we cannot

simply review the remainder of the evidence against the defendant to determine

whether the outcome of the trial would have been different. The absence of

counsel under such circumstances has unquantifiable effects on the jury’s

perceptions of the defendant and counsel’s ability to marshal an adequate defense.

“Harmless-error analysis in such a context would be a speculative inquiry into

what might have occurred in an alternate universe.” See id., 126 S. Ct. at 2565.

We cannot know what defense counsel would have said or done had he been

present the first time around; nor can we ascertain with any degree of certainty

how the prosecution’s approach or the witness’s answers might have changed if

defense counsel had been present and able to participate in the process. We are

therefore not able to accurately assess the impact counsel’s absence had on the

proceedings. As the Majority points out, maybe it had no impact; but it is just as

likely that it had a significant negative impact. Either way, we are forced to

speculate. This problem is sufficient on its own to find structural error. See id. at

149 n.4, 126 S. Ct. at 2564 n.4 (“[H]ere, as we have done in the past, we rest our

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conclusion of structural error upon the difficulty of assessing the effect of the

error.”).

Turning to the facts of this case, there is no question that defense counsel’s

absence during the introduction of directly inculpatory evidence raised substantial

potential for prejudice, the full extent of which is immeasurable. A law

enforcement expert testified for the prosecution during defense counsel’s absence,

answering inculpatory questions about where the photographs of the underage

victim were found and providing graphic descriptions of the images. Specifically,

the expert testified that the photos of the minor were taken on “March the 10th,

2005, at 6:49 p.m.” He repeated that assertion again during counsel’s absence,

reiterating that the photos were “created initially by the camera” on “March the

10th of 2005 at 6:49 p.m.” The expert also detailed the location of the files on the

defendant’s computer, including descriptions of directories, subdirectories, and

sub-subdirectories, as well as the categorization of those files. In asking the expert

about the files, the prosecutor called them “notable images,” and the expert

substantiated that characterization by mirroring the characterization in his answer

and providing a detailed description of the content of the photos. Finally, the

expert opined on the date of the images’ creation and the date they were uploaded

to the computer.

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This testimony went straight to the heart of one crime for which the

defendant was tried (possession of child pornography) and supported an inference

that the defendant would have been predisposed to commit the other crime

(enticement of a minor). Critically, after defense counsel returned, the expert

testified that the photos had been created on “March 11, 2006,” contrary to the

testimony he gave while counsel was absent. These circumstances are instructive

as to both the potential for prejudice at an “inculpatory evidence” stage and the

speculation required to assess the effect of this error.

The fact that the trial proceeded without the defendant’s sole counsel present

raises a slew of highly prejudicial circumstances. Most immediately, and as a

practical matter, defense counsel lost the opportunity to observe the witness’s

testimony firsthand, which limited his ability to assess (1) the witness’s demeanor

when giving the testimony, (2) the jurors’ demeanors when hearing the witness’s

testimony, and (3) the jurors’ reactions to the evidence admitted. Cf. Anderson v.

Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985) (noting that only

those who have the opportunity to observe witness testimony firsthand “can be

aware of the variations in demeanor and tone of voice that bear so heavily on the

listener’s understanding of and belief in what is said”). The jurors’ reaction to

testimony is incredibly important to inform defense counsel’s strategy decisions

moving forward. Here, defense counsel missed the jurors’ initial reactions to the

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introduction of inculpatory evidence and thus lost a key opportunity to assess his

client’s case in response. That the evidence was resubmitted to the jury

immediately after defense counsel arrived does not assuage the error; the element

of surprise was gone and any initial reactions to the evidence went with it.

Moreover, this lost opportunity impacted not only the immediate steps counsel

took following the reintroduction of this evidence in his presence but also the

approach he took thereafter. See Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at

2564 (describing the “myriad aspects of representation” the participation of an

attorney entails). And the re-introduction of the same evidence gave the

prosecution the advantage of repetition, thereby emphasizing that inculpatory

evidence.

Furthermore, witness demeanor may be dispositive for a jury. In the words

of Judge Learned Hand, “[t]he carriage, behavior, bearing, manner, and appearance

of a witness—in short, his ‘demeanor’—is a part of the evidence. The words used

are by no means all that we rely on in making up our minds about the truth of a

question . . . .” Dyer v. MacDougall, 201 F.2d 265, 268–69 (2d Cir. 1952).

Indeed, we regularly recognize and defer to “the whole nexus of sense impressions

which [the jury] get[s] from a witness,” and thus generally affirm findings of fact

by a jury “on the hypothesis that this part of the evidence may have turned the

scale.” Id. at 269. These are “matters that cannot be gleaned from a written

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transcript.” See United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995) (noting

that some of the benefits of live testimony include the ability “to see the witness’s

physical reactions to questions, to assess the witness’s demeanor, and to hear the

tone of the witness’s voice”).

Even more troubling, in this particular case, the introduction of testimony in

counsel’s absence prevented defense counsel from impeaching a key government

witness’s credibility. During defense counsel’s absence, the law enforcement

expert stated that the date on the camera was 2005. Later, he said it was 2006.

Regardless of whether the expert misrepresented or misspoke, if counsel had been

there in the first instance, he could have attacked the witness’s credibility on cross-

examination. However, during cross-examination, defense counsel did not

mention the discrepancy between the expert’s first statement and his second. It is,

at the very least, reasonable to conclude that counsel’s failure to cross-examine the

expert about this mistake occurred because counsel was unaware of the

discrepancy. Counsel was not present when the expert first said 2005 and the

expert never repeated that inconsistent statement. 4

4 That defense counsel received a report including the apparently erroneous date prior to trial does not mitigate the problem of defense counsel’s absence when this evidence was introduced live. Defense counsel could not know what the expert witness was going to say until he said it; thus, the inconsistencies in the live testimony remain problematic. Moreover, impeachment of live testimony has an unparalleled effect on trial proceedings.

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Contrary to the Majority’s view, the effects of a lost opportunity to impeach

are not perfectly quantifiable. Lost opportunities matter.5 See Geders v. United

States, 425 U.S. 80, 91, 96 S. Ct. 1330, 1336–37 (1976) (reversing without inquiry

into prejudice because counsel was denied the opportunity to confer with his client

during a recess); Herring, 422 U.S. at 865, 95 S. Ct. at 2556–57 (reversing without

inquiry into prejudice because trial judge’s order denying counsel the opportunity

to make a summation at close of bench trial denied defendant assistance of

counsel). We are left to wonder whether the credibility of the witness may have

been impeached with regard to the photo dates, and what would have happened

had the jury had the benefit of this impeachment.

The significance of such an error is particularly obvious in this case: the

defendant did not have contact with the victim until at least August of 2005,

months after the date the expert initially claimed the photo was taken. Attacking

credibility is one of the best tactics a defense attorney may have to undermine a

witness’s testimony. When an attorney demonstrates that a witness has made an

5 The Majority claims that “there is nothing unusual—or unusually difficult—about determining whether a failure to object, or a lost opportunity to object, to testimony was prejudicial or harmless.” See Maj. Op. at 81. I am not so sure that a lost opportunity to object is the same thing as the failure to object—or so easily quantifiable. It seems to me that a lost opportunity to object is an altogether different problem, one that requires speculation to resolve. I also note that the Majority cites no case law supporting that a lost opportunity to object is in fact readily calculable. The cases cited instead deal with the more readily assessable failure to object, which, of course, lends itself to the deficient-performance analysis not at issue here. And further, here, it was a lost opportunity to impeach—the effects of which could have pervaded the witness’s entire testimony.

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inconsistent statement, it allows the attorney to argue to the jury that other things

the witness said might not have been trustworthy or reliable either. Accordingly,

the admission of inculpatory evidence in the absence of defense counsel in this

case critically impaired the defendant’s right to present a defense, particularly the

right to challenge the credibility of an important government witness. See

Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967).

Moreover, defense counsel’s absence during the introduction of inculpatory

evidence not only affected counsel’s ability to advocate for his client but also

potentially prejudiced the defendant’s case by the appearance that the absence

presented to the jury. I question what the jurors must have thought when they saw

the district court commence proceedings without defense counsel present. The

spectacle of the defendant seated alone at counsel table while, on the other side, the

attorney for the government elicits inculpatory evidence from a witness must have

been a lopsided sight indeed. It may have led the jurors to conclude that the

defendant’s own advocate did not believe that the defendant’s case was

worthwhile. And it may have made the jurors see the trial judge as presuming the

defendant was guilty. After all, if the judge does not care whether defense counsel

is there, why should the jury?

Reinitiating the trial without defense counsel present also may have done

irreparable damage to the jury’s perspective of defense counsel. It is well-

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documented that jurors’ perceptions of attorneys influence verdicts. In this case,

there is no positive association that could come from defense counsel not being

present when the government elicited incriminating testimony from a key witness.

Faced with these considerations, how can we quantify and dismiss as

harmless beyond reasonable doubt the impact that defense counsel’s absence had

on the jury when it saw the district court resume the trial without defense counsel

present, leaving the defendant to fend for himself? There is no way to quantify the

extent of this error’s effects on the jury without speculating. We cannot assess it

from a transcript. “The idea that a reviewing court can assess from a cold

transcript the prejudice caused by counsel’s absence completely ignores the role

that counsel’s physical presence in the courtroom actually plays.” 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

(2011). This is because “the reviewing court cannot possibly discern from the

transcript how the jury . . . reacted non-verbally to the proceedings that occurred in

counsel’s absence. 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.” Id.; see also United States v. Zeigler, 994 F.2d 845,

849 (D.C. Cir. 1993).

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Of course, the Majority states, “[w]e know what counsel did, and did not do,

after he heard those questions asked and answered.” Maj. Op. at 49. Similarly,

one of my colleagues concurs in the affirmance because he believes the defendant

received a “do-over.” Jordan, J., concurring, at 172–74. But we do not know what

counsel would have done if he had been there the first time the evidence was

introduced; we only know what he did the second time. It matters neither whether

the substance of the evidence was repeated and subjected to cross-examination

when counsel returned nor that counsel failed to object when he ultimately heard

the evidence introduced. 6 What matters is that counsel did not have the

opportunity in the first instance to, inter alia, observe the witness as he testified,

note the impact of the inculpatory evidence on the jury, or attack the credibility of

the witness with a prior inconsistent statement. Plus, hearing the same inculpatory

evidence twice is hardly curative—it might even make matters worse.

Additionally, the suggestion that we know what counsel did and the theory

that counsel got a “do-over” both fail to account for the harm inflicted by

6 The Supreme Court has made clear that counsel’s failure to object to the taking of evidence during his absence is irrelevant for purposes of determining whether structural error has occurred. See White, 373 U.S. at 60 n.*, 83 S. Ct. at 1051 n.* (failure of counsel to object to evidence obtained in violation of the right to counsel does not negate need for automatic reversal because “the rationale of [structural error precedent] does not rest . . . on a showing of prejudice”). If the Supreme Court has held that an objection is unnecessary to warrant automatic reversal where counsel is present during the admission of the offending evidence, an objection is certainly unnecessary where counsel is not even present for the admission of the offending evidence.

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proceeding without counsel in front of the jury. Any “do-over” could not fix the

fact that the jury had just witnessed the trial judge start up proceedings again

without defense counsel present. We do not know the effect that seeing the

criminal defendant sitting at counsel’s table alone had on the jury; we do not know

what the jurors must have thought when they watched the judge reconvene trial

without waiting for defense counsel to arrive, or what impression of guilt may have

attached when the judge appeared not to care whether defense counsel was there.

Thus, not only do we not know what counsel would or would not have done but

also it is inaccurate to claim that the defendant got a “do-over”—in either practical

or legal terms—simply because evidence was repeated for a second time when his

counsel came back into the courtroom. 7

This problem is precisely why errors such as this are structural in nature. As

the Supreme Court has explained, when “the scope of a violation . . . cannot be

discerned from the record, any inquiry into its effect on the outcome of the case

would be purely speculative.” Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797; see

also Holloway, 435 U.S. at 490–91. Since we cannot accurately assess the effect

7 I emphasize that the “do-over” notion simply does not cure a structural defect. The problem with structural error is that it strikes a blow to the integrity of the process itself, calling into question the system put into place to guarantee fairness. The system does not get a “do- over,” even if one can accept that the defendant here did.

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of the absence of defendant’s counsel during the admission of inculpatory

evidence, fundamental fairness requires a new trial.

The Supreme Court’s decision in Cronic also compels a finding that the

violation here is structural error. In Cronic, the Court announced that structural

error occurs if counsel is denied at a “critical stage” in the proceedings. This is

because “a trial is unfair if the accused is denied counsel at a critical stage of his

trial”; in the absence of counsel, “a serious risk of injustice infects the trial itself.”

Cronic, 466 U.S. at 656, 659 & n.25, 104 S. Ct. at 2045, 2047 & n.25 (internal

quotation marks omitted). The error at bar is a Cronic error because the stage of

trial in which the prosecution offers inculpatory evidence is a critical stage in the

proceedings against the defendant. 8

A critical stage is one that holds “significant consequences for the accused.”

Bell v. Cone, 535 U.S. 685, 696, 122 S. Ct. 1843, 1851 (2002). To determine

whether a stage in the proceedings meets this definition, we again look to the

8 As a threshold point, it is worth noting that defense counsel was actually absent from the proceedings. Cronic applies to even constructive denials of counsel, and much of the Supreme Court case law has focused on whether a defendant was constructively denied counsel due to defense counsel failures and, thus, whether the standard Strickland deficient performance inquiry is appropriate. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In contrast, this case is squarely removed from the Strickland deficient-performance line of inquiry because, here, defense counsel was denied by virtue of being physically absent. See Vines v. United States, 28 F.3d 1123, 1127 (11th Cir. 1994) (“Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context.”). Contra Tjoflat, J., concurring, at 128 & n.3.

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structural-error factors: potential for prejudice and the necessity of speculation.

We must “analyze whether potential substantial prejudice to [a] defendant’s rights

inheres in the particular confrontation and the ability of counsel to help avoid that

prejudice.” See Wade, 388 U.S. at 227, 87 S. Ct. at 1932; see also Cronic, 466

U.S. at 656, 104 S. Ct. at 2045.

The question governing every criminal trial is whether enough inculpatory

evidence exists to find a defendant guilty beyond a reasonable doubt. Considering

this basic premise, the prosecution’s submission of inculpatory evidence is

essential to the trial process. Adding to its description of a “critical stage” as one

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

Ct. at 1851, the Supreme Court has clarified that “critical stages” include

“proceedings between an individual and agents of the State (whether ‘formal or

informal, in court or out’) that amount to ‘trial-like confrontations,’ at which

counsel would help the accused in ‘coping with legal problems or . . . meeting his

adversary,’” Rothgery v. Gillespie Cty., 554 U.S. 191, 212 n.16, 128 S. Ct. 2578,

2591 n.16 (2008) (alteration in original) (citations omitted).

There is no stage during criminal proceedings more “trial-like” than when

the prosecution offers evidence that helps convince the jury the defendant is guilty.

The submission of inculpatory evidence is the stage of trial that matters. It is when

“the core purpose of the counsel guarantee” is necessary, “to assure ‘[a]ssistance’

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at trial, when the accused [i]s confronted with both the intricacies of the law and

the advocacy of the public prosecutor.” See United States v. Ash, 413 U.S. 300,

309, 93 S. Ct. 2568, 2573 (1973). At this stage, the potential for prejudice is at its

highest point, and the effects of counsel’s absence are unquantifiable.

I can think of no more critical a stage in criminal proceedings than the

admission of inculpatory evidence against a defendant. Several of our sister

circuits agree. See, e.g., United States v. Hamilton, 391 F.3d 1066, 1070–71 (9th

Cir. 2004) (finding that “the portions of the consolidated proceedings in which

evidence relating to [the defendant’s] case” was presented constituted a critical

stage, and the absence of defense counsel at such a stage resulted in structural

error); Olden v. United States, 224 F.3d 561, 568 (6th Cir. 2000) (“When the

government presents evidence probative of a defendant’s culpability in criminal

activity, or evidence that further implicates a defendant in criminal conduct, that

portion of a criminal trial is sufficiently critical to the ultimate question of guilt to

trigger the protections of Cronic.”); Burdine v. Johnson, 262 F.3d 336, 347 (5th

Cir. 2001) (en banc) (“[T]he presentation of evidence against a defendant is a

critical stage of a criminal proceeding.”); see also Green v. Arn, 809 F.2d 1257,

1263 (6th Cir.) (“It is difficult to perceive a more critical stage of a trial than the

taking of evidence on the defendant’s guilt.”), vacated on other grounds, 484 U.S.

806, 108 S. Ct. 52 (1987) (mem.), reinstated, 839 F.2d 300 (6th Cir. 1988); United

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States v. Russell, 205 F.3d 768, 771–72 (5th Cir. 2000). Nevertheless, in the

Majority’s holding today, we become the first circuit to find that, in a single-

defendant trial, the complete absence of the defendant’s sole counsel during the

introduction of inculpatory evidence does not constitute structural error.

Although several of our sister circuits agree that the introduction of

inculpatory evidence against a defendant is a critical stage, none of them have

encountered circumstances as egregious as those presented here. For example,

Olden, Green, and Russell addressed instances where the attorney for one

defendant in a multi-defendant trial was absent and the court, counsel, and parties

operated under the erroneous assumption that the continued presence of a co-

defendant’s attorney was adequate to protect the defendant’s right to counsel. In

each case, a co-defendant’s counsel was available to assist the defendant with

cross-examination or to represent the defendant’s interests otherwise, but the

appellate court nonetheless found that reversal was required under the Sixth

Amendment. 9

In Olden, the Sixth Circuit concluded that remand was warranted in a multi-

defendant, multi-attorney trial even when a co-defendant’s counsel agreed to—and

9 In Olden, the Sixth Circuit remanded for an evidentiary hearing in order to determine whether the defendant “voluntarily, knowingly, and intelligently waived” his Sixth Amendment rights, and held that if the defendant could establish that his rights were not properly waived, then a new trial was warranted per Cronic. See 224 F.3d at 569.

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did—stand in for the defendant’s counsel during an absence. See Olden, 224 F.3d

at 568–69. Earlier, in Green, the Sixth Circuit reversed when confronted with

defense counsel’s temporary absence in a multi-defendant trial, see 809 F.2d at

1263–64, and even the sole dissenting judge (who would not have reversed based

on structural error) noted that his view would be different if he had been presented

with the “extreme” facts in the case before us now, see id. at 1265 (Boggs, J.,

dissenting). Judge Boggs wrote: “The facts of [Green] are a long way from, for an

extreme example, taking of direct testimony against a single defendant whose

counsel is absent.” Id. And, in Russell, counsel for one of the defendant’s sixteen

co-defendants volunteered to sit in on behalf of the defendant’s absent counsel and

the court instructed the government not to call any witness relevant to the

defendant during his counsel’s absence. See 205 F.3d at 769–70. Yet the Fifth

Circuit still found structural error since potentially inculpatory evidence was

offered while the defendant’s counsel was absent. See id. at 772–73.

Although the cases on which the Majority relies reached the opposite result,

those cases are distinguishable from the present case because none involved a

single defendant deprived of his sole counsel. See Sweeney v. United States, 766

F.3d 857, 858–59 & n.2 (8th Cir. 2014), cert. denied, 135 S. Ct. 1841 (2015)

(mem.); United States v. Kaid, 502 F.3d 43, 44–45 (2d Cir. 2007) (per curiam). In

fact, in Kaid, there were so many defense attorneys and co-defendants that

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counsel’s “alleged trial absence” was not “noted anywhere in the trial record—not

by the able district judge, not by the attorney involved, not by fellow defense

attorneys, not by the prosecutor, and not by [the defendant] himself.” See 502 F.3d

at 44–45.10 This is clearly different from the circumstances here; it strains

credulity to claim that no one noticed the sole defendant sitting entirely alone at

counsel’s table.

In sum, several of our sister circuits have held that even potentially

inculpatory evidence introduced against a defendant during a multi-defendant,

multi-counsel case, while that defendant’s counsel was absent, constitutes

structural error. And those circuits that disagree have not faced the circumstances

we encounter here. Here, the trial judge, defense attorney, and defendant received

no assurances that another attorney was looking out for the defendant’s interests.

No co-defendant’s attorney sat at the table with the defendant, the presence of

whom could mitigate the potential for prejudicial effect in the eyes of the jury—

instead, he sat alone. Nonetheless, the Majority concludes that directly inculpatory

evidence introduced against a defendant in a single-defendant, single-counsel case

while defense counsel is absent constitutes harmless trial error.

10 The Majority’s reliance on Kaid is also problematic because the Second Circuit in that case assessed the defendant’s absence-of-counsel claim under Strickland—an analysis that even the Majority concedes is erroneous, see Maj. Op. at 19 n.7 (citing Vines, 28 F.3d at 1127 (“Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context.”)).

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Regardless of what other circuits have done, the Supreme Court has

indicated that it matters whether the evidence presented during counsel’s absence

directly inculpated a sole defendant. In Woods v. Donald, the Sixth Circuit granted

a petitioner habeas relief after potentially “indirectly inculp[atory]” evidence was

introduced against him in the absence of defense counsel. See 575 U.S. ___, ___,

135 S. Ct. 1372, 1377 (2015) (per curiam). The Supreme Court reversed,

explaining that, because the Court had never decided the specific question in that

case—whether testimony about co-defendants is a critical stage requiring the

presence of counsel under Cronic—the Sixth Circuit erred in ruling that the state

court of appeals’ decision was contrary to a Supreme Court holding. See id. at

1377. Under the deferential standard for federal habeas review, “[w]ithin the

contours of Cronic, a fairminded jurist could conclude that a presumption of

prejudice is not warranted by counsel’s short absence during testimony about other

defendants where that testimony was irrelevant to the defendant’s theory of the

case.” Id. at 1377–78. However, in so holding, the Court emphasized the

distinction relevant here: “The relevant testimony was not merely ‘testimony of a

government witness’; it was prosecution testimony about other defendants.” See

id. at 1377 (noting that “the Sixth Circuit framed the issue at too high a level of

generality”). Clearly, this is an important distinction. 11

11 Woods informs my view, but it is not dispositive. The Supreme Court stated that it was

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* * *

Supreme Court instruction as to what constitutes a critical stage, guidance

from other circuits, and a basic understanding of how criminal trials work—the

heart of which is when the prosecution introduces evidence against the defendant

to prove his guilt—all dictate the conclusion that the admission of directly

inculpatory evidence against a defendant is a critical stage of the trial. The

deprivation of counsel during this critical stage is a constitutional error, “and no

amount of showing of want of prejudice w[ill] cure it.” See Cronic, 466 U.S. at

659, 104 S. Ct. at 2047.

The Majority fails to adequately account for the key features of the error at

issue. In an effort to quantify the unquantifiable, the Majority disregards the

potential for prejudice, focuses on the amount of time defense counsel was absent,

only addressing “the narrow context of federal habeas review,” not “the merits of the underlying Sixth Amendment principle.” Woods, 135 S. Ct. at 1378 (internal quotation marks omitted). But, in the absence of binding precedent on this point, Woods offers valuable insight into the type of distinctions the Court may make if and when it takes such a case on direct review. One need only look to the relationship between, for example, Lawrence v. Texas and United States v. Windsor to understand how the Court’s disavowal of a rule in an earlier case may nonetheless inform a future holding. See United States v. Windsor, 570 U.S. __, __, 133 S. Ct. 2675, 2696 (2013); id. at 2709 (Scalia, J., dissenting) (discussing the Court’s earlier limitation of its holding in Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484 (2003)).

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and adopts a novel, hypertechnical approach to “stages” that inverts and

undermines the constitutional inquiry we are obligated to perform.

In disregarding the potential for prejudice here, the Majority conflates the

constitutional analysis. To determine whether an error is structural or subject to

harmless-error analysis, we must first examine the potential for prejudice. If the

potential for prejudice does not warrant a structural error finding, we then conduct

an actual-prejudice/harmlessness inquiry. The Majority forgoes the threshold step

in this process, first finding that the defendant’s criminal proceeding as a whole

was not affected by counsel’s absence, and then concluding that structural error has

not occurred. This semantic inversion evades the point. If a structural error

occurs, it inherently undermines the fairness of a criminal proceeding as a whole

by virtue of its occurrence. See Brecht, 507 U.S. at 629–30, 113 S. Ct. at 1717

(“The existence of [structural] defects—deprivation of the right to counsel, for

example—requires automatic reversal of the conviction because they infect the

entire trial process.” (footnote omitted)); United States v. Davila, 569 U.S. ___,

___, 133 S. Ct. 2139, 2149 (2013). That is the difference between a prejudice

inquiry and a prejudice presumption. Structural errors, by definition, “pervade the

entire proceeding.” See Satterwhite, 486 U.S. at 256, 108 S. Ct. at 1797; Cronic,

466 U.S. at 659 n.25, 104 S. Ct. at 2047 n.25 (“The Court has “uniformly found

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constitutional error without any showing of prejudice when counsel was either

totally absent, or prevented from assisting the accused during a critical stage of the

proceeding.” (emphasis added)).

But the Majority from the outset performs a harmless-error analysis. The

Majority’s reasoning parallels the government’s reasoning in Gonzalez-Lopez,

which the Supreme Court rejected. The government in Gonzalez-Lopez argued,

“[a] trial is not unfair and thus the Sixth Amendment is not violated . . . unless a

defendant has been prejudiced.” See 548 U.S. at 145, 126 S. Ct. at 2562. The

Court squarely rejected this construction, finding: “It is true enough that the

purpose of the rights set forth in th[e Sixth] Amendment is to ensure a fair trial; but

it does not follow that the rights can be disregarded so long as the trial is, on the

whole, fair.” Id. Instead, the Sixth Amendment right to counsel during trial

“commands, not that a trial be fair, but that a particular guarantee of fairness be

provided” throughout the trial. Id. at 146, 126 S. Ct. at 2562.

Thus, the right at stake in this case is the right to defense counsel during the

introduction of directly inculpatory evidence, “not the right to a fair trial” as a

whole. See id. “[A]nd that right was violated because the deprivation of counsel

was erroneous.” See id. In these circumstances, “[n]o additional showing of

prejudice is required to make the violation ‘complete.’” See id.

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The Majority attempts to distinguish this case from others based on the

amount of time counsel was absent, hanging its hat on a rigid comparison of the

minutes that counsel was absent in relation to the length of time counsel was

present. See, e.g., Maj. Op. at 50–51 (“[T]he absence in Kaid was nearly three

times as long as the absence in Roy’s case . . . .”); id. at 51 (noting that, in

Sweeney, there were “twice as many transcript pages of testimony and more than

twice as many questions and answers as counsel missed in Roy’s case”). This

mechanical focus on minutes and seconds drives the Majority’s “critical stage”

inquiry. And in considering the contours of structural error outside of the “critical

stage” framework, the Majority sets forth a new test that turns on the length of a

counsel’s absence: the “absence for a substantial portion of trial” test. See id. at

61–73. The Majority’s mechanical, minutes-and-seconds approach is misplaced.

First, the Majority’s mechanical calculation is simply the wrong inquiry for

the “critical stage” analysis. The connotation of “critical” is that it denotes a

substantive inquiry—we must look to what was happening to see whether what

occurred was important. The importance of the proceedings that counsel missed

outweighs the amount of time that counsel was away. To simply look at the length

of time and the number of transcript pages disregards what was critical about the

stage of the proceedings relevant here—the introduction of directly inculpatory

evidence. The rule from Cronic is not that reversal is required when counsel is

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absent from a “some-time-longer-than-seven-minute stage in the proceedings.”

The rule is that reversal is required when counsel is absent at a critical stage in the

proceedings. The Supreme Court certainly could have said that reversal is required

when counsel is absent for a “lengthy period of time,” or for “prolonged periods,”

if length of time was the key factor in the inquiry into whether a stage is a critical

stage. But there is no support for the Majority’s treatment of length of time as all

but dispositive.

Second, the Majority’s “length of time” distinction is not enough to remove

the circumstances here from structural error. The Majority focuses on the length of

time to try to distinguish relevant cases from our sister circuits, engaging in a

tedious line-drawing exercise while emphasizing that seven minutes in a lengthy

trial is not a substantially long period. I agree that seven minutes is not all that

long. But it is long enough to permit incriminating evidence to be admitted, and it

is long enough to create an attendant risk of substantial prejudice. See Olden, 224

F.3d at 568 (“[W]hen the government presents evidence probative of a defendant’s

culpability in a criminal activity, or evidence that further implicates a defendant in

criminal conduct, that portion of a criminal trial is sufficiently critical to the

ultimate question of guilt to trigger the protections of Cronic.”); Russell, 205 F.3d

at 772 (“[F]or [the defendant] to be without counsel as the probability of his guilt

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increased during the government’s presentation of evidence against his co-

conspirators is unacceptable.”).

In fact, illustrating the shortcomings in the Majority’s “length of time”

distinction—as well as the shortcomings in the Majority’s “absence for a

substantial portion of trial” test—a one-minute absence of counsel could be enough

to constitute structural error. Consider an expert witness in a homicide trial who

takes the stand and opines that the fingerprints on the murder weapon belong to the

defendant, while counsel for the defendant has not yet returned from lunch. The

government introduces the expert testimony in less than one minute during defense

counsel’s absence. That, in my estimation, is long enough to warrant application

of the Cronic reversal rule because the expert opinion evidence is directly

inculpatory, and the probability of the defendant’s guilt dramatically increases

during that one-minute span. See Russell, 205 F.3d at 772. Furthermore, even if

the testimony is repeated and subjected to cross-examination when defense counsel

returns, there is no way to measure how much the initial opinion influenced the

jury’s consideration of the defendant’s guilt.

Under the Majority’s inverted analysis, we might conclude that the one-

minute absence was an insufficient “stage” or was not for a “substantial portion of

trial” because it was so short and the other evidence so damning that the defendant

surely would have been found guilty anyway. That conclusion, however, would be

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premised on pure speculation as to the effects of the admitted testimony—

speculation that indicates structural error. Therein lies the problem with applying a

harmless-error analysis to an absence of counsel during the admission of

inculpatory evidence. 12

Again, structural error results in a presumptive-prejudice rule—we presume

prejudice when structural error occurs and thus do not perform the prejudice

inquiry required for harmless-error review. The Majority rewrites Cronic (and

structural error, writ large) to make exceptions—when the absence is not too

lengthy, when the evidence is so great—and instead applies the prejudice test that

the Supreme Court rejected in Cronic. To suggest that the specific length of time

that counsel is absent perfectly correlates with the impact of potential lost

12 Similarly, I am not persuaded by Judge Rosenbaum’s conclusion that defense counsel’s absence in this case was “de minimis.” As a practical matter, this approach falls into the same trap as does the Majority’s, by measuring “de minimis” in light of how long counsel was absent relative to time present instead of considering the substance of the evidence introduced. See Rosenbaum, J., concurring, at 217 (“I would draw the line between trial-error absences and structural-error absences at the point where an absence lasts for more than ten minutes or 1% of the total ‘critical stages’ of trial.”). I believe we should determine whether structural error occurred by focusing on the potential for prejudice given the substance of what was introduced in counsel’s absence and whether we can assess the effects that flow from that absence, not a rigid measure of the minutes counsel missed. In addition, as a legal matter, the de minimis approach functions as an exception to the exception, which is an approach that has not been endorsed by the Supreme Court. In the absence of any statement that such an exception applies, I would decline to create it. Under Supreme Court precedent, “a constitutional error is either structural or it is not.” Neder v. United States, 527 U.S. 1, 14, 119 S. Ct. 1827, 1836 (1999). If the error can be readily quantified and deemed de minimis, then it is trial error, not structural error. Sullivan, 508 U.S. at 281–82, 113 S. Ct. at 2083 (noting that structural errors are “necessarily unquantifiable and indeterminate”); Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265 (noting that structural errors “defy analysis by harmless-error standards”).

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opportunities to advocate for his client is deceptively simplistic. It disregards what

the Court has recognized as the “myriad aspects of representation,” resulting in

countless unknowable possibilities that may have been permitted or prevented by

the participation of an attorney. Gonzalez-Lopez, 548 U.S. at 150, 126 S. Ct. at

2564. Even more importantly, to say that the length of counsel’s absence is short

and, consequently, not prejudicial bypasses the threshold inquiry—whether the

error is trial error, permitting such an analysis in the first place, or structural error,

prompting a presumption of prejudice. 13

Consistent with its mechanical approach to structural-error analysis, the

Majority creates a hypertechnical “critical stage” standard that elevates form over

substance. The Majority makes an extended argument that a “critical stage” is “a

qualitatively distinct, discrete, and separate phase or step of a criminal proceeding”

or “a self-contained proceeding or a discrete and separately identifiable portion of

a larger proceeding.” Maj. Op. at 28–32. However, my understanding of the

critical-stage concept set forth by the Supreme Court recognizes that there are

13 Several of the highest state courts to consider this question have similarly declined to focus on the overall length of time that counsel was absent, instead looking to the substance of what occurred during the absence. The Pennsylvania Supreme Court found automatic reversal under Cronic was warranted when defense counsel was absent for a brief conversation between the court and a juror. See Commonwealth v. Johnson, 828 A.2d 1009, 1015 (Pa. 2003). Similarly, the South Carolina Supreme Court presumed prejudice and reversed under Cronic where defense counsel was temporarily absent during the testimony of one of the prosecution witnesses. See McKnight v. State, 465 S.E.2d 352, 359–60 (S.C. 1995).

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defining moments in any trial that pervade the remainder of the proceedings, not

just isolated, discrete phases or steps. In Cronic, the Court cited several cases of

Sixth Amendment structural error that involved defining moments, such as

counsel’s lost opportunity to make a statement, see Herring, 422 U.S. at 865, 95

S. Ct. at 2556–57; the defendant’s inability to converse with counsel during a

recess, see Geders, 425 U.S. at 91, 96 S. Ct. at 1336–37; and deprivation of the

defendant’s right to consult with counsel to determine when to testify at trial, see

Brooks, 406 U.S. at 612–13, 92 S. Ct. at 1895.14 Those cases did not involve the

denial of counsel during a “discrete and separately identifiable” phase of criminal

proceedings; they involved the denial of counsel “at a critical stage of . . . trial.”

See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (emphasis added). Accord Gregg

v. United States, 754 A.2d 265, 268–71 (D.C. Ct. App. 2000) (holding that, where

14 The Cronic Court stated:

The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. See, e.g., Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976); Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975); Brooks v. Tennessee, 406 U.S. 605, 612–613, 92 S. Ct. 1891, 1895, 32 L. Ed. 2d 358 (1972); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S. Ct. 157, 159, 7 L. Ed. 2d 114 (1961); White v. Maryland, 373 U.S. 59, 60, 83 S. Ct. 1050, 1051, 10 L. Ed. 2d 193 (1963) (per curiam); Ferguson v. Georgia, 365 U.S. 570, 81 S. Ct. 756, 5 L. Ed. 2d 783 (1961); Williams v. Kaiser, 323 U.S. 471, 475–476, 65 S. Ct. 363, 366, 89 L. Ed. 398 (1945).

Cronic, 466 U.S. at 659 n.25, 104 S. Ct. at 2047 n.25.

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defense counsel is absent for even a portion of voir dire, reversal under Cronic is

required in the absence of a waiver).

Certainly, the Majority and I have strikingly different approaches to

understanding the issue before us. While the Majority obliquely takes into account

the facts of the crime, the potential outcome of treating this as structural error, et

cetera, I see this as a strictly constitutional question about process, fairness, and the

integrity of the trial. We are not instructed to consider what could happen with a

different criminal defendant in a different criminal trial. And we are not instructed

to consider the outcomes that might result from our proper application of the law.

When I remove the impermissible factors that are skewing the Majority’s analysis,

I reach a very different result.

A conspicuous example of the divergence between our approaches to this

case can be seen in the Majority’s hypothetical regarding Manuel Noriega. The

Majority’s response to the incalculable negative impact of having the trial proceed

without the defendant’s sole counsel there is to fearfully query, “but what about

(former military dictator) Manuel Noriega?” See Maj. Op. at 59–60. Well, what

about him? Presumably, if irreparable constitutional error occurred in a trial—

whether it be in the trial of Manuel Noriega or anyone else—we would reverse and

remand for proceedings consistent with what the Constitution requires. It is simply

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what we, as judges and guardians of the Constitution, are required to do. No

matter how bad the defendant; no matter how egregious the crime; no matter how

long the defendant’s trial lasted. Neither our views of the defendant nor our policy

concerns about the costs of a second trial are relevant.

It is easy to focus on the disturbing nature of this particular defendant’s

offense to avoid reaching the constitutionally required result. But it is in precisely

cases such as these that we must vigilantly ensure we are adhering to our

obligation to uphold the same protections for all criminal defendants, rather than

being swayed by emotions or public influence. The extent of our commitment to

the Constitution and the protections it guarantees can be measured by our treatment

of the most despised defendants. To be sure, these individuals may not elicit our

pity and may ultimately deserve harsh punishment, but the constitutional processes

that the Framers put in place are there to protect everyone, including people

accused of the gravest and most serious crimes. It is in those instances that we are

most likely to react inflammatorily by disregarding due process. That is precisely

why it is in those instances that our adherence to constitutional protections must be

resolute. 15

15 Lest there be any confusion, I am not saying that people accused of terrible crimes are entitled to more constitutional protections. Rather, I am noting that the terrible crimes of which someone is accused should not be used to detract from the legal merits of his case or to avoid

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The Sixth Amendment guarantee of the right to counsel does not apply on a

sliding scale based on the gravity of the defendant’s offense. We are not called

upon to judge the character of the individual but rather the fairness of the process.

Thus, the lurid details of this defendant’s offense serve only to distract from the

constitutional question this appeal raises: whether, in the trial of a single defendant

represented by a single lawyer, it constitutes structural error for the trial judge to

resume proceedings without defense counsel present, leaving the defendant

unaided in the presence of the jury while the prosecution presents directly

inculpatory evidence. I conclude that it does.

The Supreme Court has given explicit instructions for remedying structural

error: remand for new, constitutionally-compliant proceedings. See, e.g., Cronic,

466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25. The nature of the right at

issue—one that is “so basic to a fair trial” that it cannot be treated as harmless

error—and the characteristics of structural error itself—the effects of which cannot

be readily measured and are likely to be substantially prejudicial—mandate this

result. See Chapman, 386 U.S. at 23, 87 S. Ct. at 827–28; Brecht, 507 U.S. at 629–

applying basic constitutional requirements. Such a defendant deserves no more—and no less— constitutional protections than any other defendant.

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30, 113 S. Ct. at 1717. Immediate reversal and remand for a new trial is still a “far

more desirable” result than for the error to come up in a “spin-off of collateral

proceedings that seek to probe murky memories.” Stano, 921 F.2d at 1172

(Tjoflat, J., dissenting) (quoting Boykin, 395 U.S. at 244, 89 S. Ct. at 1713). There

is no need for us to invite additional litigation when we may resolve the issue

now.16

The Supreme Court recently reaffirmed that reversal is the only

constitutionally viable remedy upon a finding of structural error. In Williams, the

Court ruled it was structural error for the Supreme Court of Pennsylvania to

consider a case with a judge on the panel who should have recused, and thus, the

Court reversed and remanded the case to “[a]llo[w] an appellate panel to

reconsider [the] case without the participation of the interested member.” See 136

S. Ct. at 1909–10. Although the Supreme Court of Pennsylvania already

“entertained [the defendant’s] motion for reargument without [the biased judge],

who had retired months before the court denied the motion,” id. at 1922 (Thomas,

J., dissenting), the Court was not persuaded that such a pre-existing “do-over”

mattered—a new appellate panel had to reconsider the issue. The rule is therefore

16 This case is before us on direct appeal—the best time to correct the error. Cf. Davis v. Ayala, 576 U.S. ___, ___, 135 S. Ct. 2187, 2213 n.1 (2015) (Sotomayor, J., dissenting), reh’g denied, 136 S. Ct. 14 (2015) (mem.).

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clear: new proceedings are in order. In Williams, the defendant was entitled to a

new hearing. The defendant here is entitled to a new trial.17

Finally, even were harmless-error review to apply, I would find that reversal

is required because the error in this case was not “harmless beyond a reasonable

doubt.” See Chapman, 386 U.S. at 24, 87 S. Ct. at 828. The admission of

inculpatory evidence against a criminal defendant while his counsel is absent from

the courtroom is a serious constitutional error. The prejudicial effects of subjecting

a defendant to such a one-sided prosecutorial campaign are immeasurable. Here,

that error eviscerated the guarantee of fairness and reliability that the adversarial

process provides, and it undoubtedly had a serious impact on the jury’s views of

the court, the defendant, and defense counsel.

V.

There has also been extensive discussion amongst my colleagues about who

was at fault in permitting this error to occur. For instance, Judge Tjoflat in his

concurrence suggests that, if there was no one at fault, it is unclear how the

Majority can assess the error under our current harmless-error precedents. If Judge

17 My concurring colleagues hope that “de minimis” errors or “do-overs” do away with or transform structural error into trial error. By couching their analyses in these terms, they conveniently avoid the result that the Supreme Court has told us structural error requires. The Williams Court could have articulated an exception to structural error’s automatic reversal rule under any of these theories, as highlighted by Justice Thomas in his dissent, but it instead reinforced the automatic reversal rule. Given the Supreme Court’s clear instructions on the result required, I am not persuaded that we can sidestep the trial error/structural error dichotomy and the result mandated upon a finding of structural error.

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Tjoflat is correct, then this ambiguity additionally signals that the defect at issue

constitutes structural error.

But if this discussion is really a question about on whom we should place the

burden that constitutional rights remain inviolate, then amongst the defendant,

defense attorney, and the trial judge, it is the judge who properly shoulders that

burden. The Supreme Court has “consistently recognized the important role the

trial judge plays in the federal system of criminal justice.” Geders, 425 U.S. at 86,

96 S. Ct. at 1334. That is because “the judge is not a mere moderator, but is the

governor of the trial for the purpose of assuring its proper conduct and of

determining questions of law.” Quercia v. United States, 289 U.S. 466, 469, 53

S. Ct. 698, 698–99 (1933); see Rosenbaum, J., concurring, at 190 (“[T]he court

alone enjoys control over the trial proceedings, including when to start, stop, and

resume trial. And trial simply cannot proceed without the court’s actions in

allowing it to do so.”). The trial judge must therefore see to it that defense counsel

is present before permitting the introduction of inculpatory evidence in a one-

defendant, one-defense-counsel case, and, if the judge fails to do so, reversal is

warranted. 18 The defendant would not simply go free; remand would occur for a

fair trial to take place.

18 As I previously wrote, I am “unpersuaded that United States District Judges should be excused from the less than onerous burden of ensuring that the defendant’s lawyer is seated at

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Such “a per se rule of prejudice in these kinds of cases may be the most

efficient mechanism for preventing miscarriages of justice.” See Stano, 921 F.2d

at 1172 (Tjoflat, J., dissenting). It “creates a strong incentive for the courts at the

. . . trial level to ensure that a defendant is accorded meaningful representation. A

per se rule of prejudice will thus sharpen the trial court’s sense of responsibility in

discharging its duties at the first stage.” Id.

That sense of responsibility needs sharpening. By reconvening the trial

early and permitting the introduction of incriminating evidence without confirming

that defense counsel was present, the district court in this case failed to “ensure[] to

the defense in a criminal trial the opportunity to participate fully and fairly in the

adversary factfinding process.” See Herring, 422 U.S. at 858, 95 S. Ct. at 2553.

Moreover, the deprivation of defense counsel during the introduction of

inculpatory evidence is not an isolated incident in the district court judge’s

courtroom. In a different criminal jury trial, the same judge resumed proceedings

counsel table, next to his client, or is somewhere in the courtroom when the government seeks the admission of incriminating evidence.” United States v. Roy, 761 F.3d 1285, 1298 (11th Cir.), reh’g en banc granted, opinion vacated, 580 F. App’x 715 (11th Cir. 2014) (mem.).

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in the absence of defense counsel and the defendant, and the judge then allowed

the government to elicit incriminatory evidence from one of its witnesses. 19

Here, regardless of the judge’s intentions, the defendant’s constitutional

rights were violated when the judge began proceedings without counsel present.

When, in a single-defendant, single-defense-counsel trial, a judge absentmindedly

allows the government to offer inculpatory evidence while defense counsel is out

of the courtroom, the mistake results in a violation of the defendant’s Sixth

Amendment right to counsel. And, alternatively, when a judge is aware of defense

counsel’s absence in such a case and intentionally begins trial without counsel in

order to cure attorneys of tardiness, the defendant is deliberately deprived of

counsel in violation of the Sixth Amendment. I am not willing to suggest that trial

judges can send such a message to attorneys at the expense of a defendant’s

constitutional rights. An attorney’s failure to be present should result in sanctions

against the attorney, not constitutional violations against the defendant that strike a

blow to the integrity of the trial process.

VI.

19 See Transcript of Jury Trial, App. at 125:3–5, United States v. Garcia, No. 14-11845 (11th Cir. Dec. 11, 2014) (trial judge refusing to permit reading of transcript of missed testimony to defense counsel even after prosecution’s request). I would take judicial notice of this fact. See Fed. R. Evid. 201(b); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

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We have a duty not only to ensure that our legal proceedings are fair and

impartial but also to make certain that they “appear fair to all who observe them.”

Indian v. Edwards, 554 U.S. 164, 177, 128 S. Ct. 2379, 2387 (2008) (internal

quotation marks omitted). As the Supreme Court emphasized in Cronic, “‘[t]he

very premise of our adversary system of criminal justice is that partisan advocacy

on both sides of a case will best promote the ultimate objective that the guilty be

convicted and the innocent go free.’” 466 U.S. at 655, 104 S. Ct. at 2045 (quoting

Herring, 422 U.S. at 862, 95 S. Ct. at 2555). Indeed, the right to counsel is the

most important right a criminal defendant has and the best means of ensuring a fair

trial; “[o]f all the rights that an accused person has, the right to be represented by

counsel is by far the most pervasive for it affects his ability to assert any other

rights he may have.” Id. at 654, 104 S. Ct. at 2044 (internal quotation marks

To put it plainly, defense counsel is a key participant in a criminal trial. He

is both his client’s mouthpiece and his client’s confidant. Counsel’s role includes

viewing, interpreting, and responding to the demeanor of the other trial

participants, including the jurors, witnesses, opposing party, and presiding judge.

His ability to confer with his client about and develop an ongoing strategy for the

case depends on these observations. Moreover, defense counsel influences the

conduct and perceptions of other key participants by his presence and actions. By

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finding that defense counsel’s absence during the introduction of inculpatory

evidence against his client is harmless error, the Majority devalues defense counsel

and the important role defense counsel plays in ensuring the integrity of the

judicial process.

We all agree that the defendant’s trial in this case was imperfect—his Sixth

Amendment right to counsel was violated when the trial proceeded without his

only counsel present. But, most importantly, the trial was also fundamentally

unfair. The defendant was denied counsel while the prosecution admitted

inculpatory evidence against him—evidence that was used to convict and sentence

him to life in prison. When a district court allows substantive, inculpatory

evidence against a criminal defendant in the absence of any counsel and in the

presence of the jury, I can neither quantify the effects of the error nor declare that

the error was harmless beyond a reasonable doubt.

The absence of defense counsel in these circumstances constitutes

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

prejudice w[ill] cure it.” Id. at 659, 104 S. Ct. at 2047 (internal quotation marks

omitted). Such a violation undermines not only the defendant’s individual

constitutional rights but “also the accuracy of the truth-seeking process and thus

the integrity of the criminal justice system itself.” See Stano, 921 F.2d at 1170–71

(Tjoflat, J., dissenting). Affirming this conviction would abdicate my duty both to

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protect the adversarial process and to preserve the appearance of fairness. See

Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct. at 2562 (stating that the right to

counsel serves to provide not simply a fair trial but rather “a particular guarantee of

fairness”). Because the defendant received a trial that was neither perfect nor fair,

I respectfully dissent.

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MARTIN, Circuit Judge, dissenting:

Today’s majority fashions a new requirement that trial counsel must be

missing for a “substantial portion” of the trial before our court can presume a

defendant was prejudiced by his lawyer’s absence. Maj. Op. at 60–73. This

requirement is not in keeping with the Supreme Court’s recognition in United

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), that “[w]ithout counsel, the

right to a trial itself would be of little avail.” Id. at 653, 104 S. Ct. at 2043

(quotation omitted). More specifically, this “substantial portion of the trial”

requirement is nowhere to be found in Cronic, which speaks of the denial of

counsel “at a critical stage of [] trial,” with nothing indicating that counsel must go

missing for a certain length of time during his client’s trial before we presume

prejudice. Id. at 659, 104 S. Ct. at 2047 (emphasis added). The majority’s new

test assumes that courts can somehow separate out critical from uncritical portions

of trial based on the amount of time the defendant’s counsel was absent. Judge

Wilson’s dissent ably explains why this arithmetic-based approach won’t work.

See Wilson Op. at 250–54.

The majority’s approach fails to honor the Supreme Court’s reason for

creating the “critical stage” doctrine in the first place. The Supreme Court created

the “critical stage” analysis not for the purpose of slicing and dicing parts of a trial

into what looks (after the fact) to be important and what does not. Rather the

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Supreme Court relied on its “critical stage” analysis to expand the right to counsel

beyond trial. I can’t fathom that in doing so the Court meant to imply that a

defendant forfeits his Sixth Amendment right to counsel when he needs it most:

during the trial itself. And the Court has certainly never suggested that the

defendant can go without counsel while the government is introducing evidence of

his guilt.

The Supreme Court’s development of the “critical stage” doctrine started

with Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961). Charles Hamilton

had no lawyer during his arraignment and was later sentenced to death. Id. at 52,

82 S. Ct. at 158. The Court explained that “arraignment . . . is a critical stage in a

criminal proceeding [because] [w]hat happens there may affect the whole trial.”

Id. at 54, 82 S. Ct. at 158–59. For example, the Court continued, arraignment was

a stage at which “[a]vailable defenses may be [] irretrievably lost” (just as at trial).

Id. It is because the harm done to a defendant by standing alone at arraignment is

so similar to the harm of standing alone at trial that the Supreme Court expanded

the right to counsel to arraignments too. Id.

From there, the Supreme Court identified other “critical stages,” always

based on the similarity of the non-trial proceeding to the trial itself. See United

States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 2298 (1984) (“Although we

have extended an accused’s right to counsel to certain ‘critical’ pretrial

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proceedings, we have done so recognizing that at those proceedings, the accused is

confronted, just as at trial, by the procedural system, or by his expert adversary, or

by both.” (emphasis added) (citation and quotation omitted) (alteration adopted));

see also, e.g., Mempa v. Rhay, 389 U.S. 128, 135–37, 88 S. Ct. 254, 257–58

(1967) (deferred sentence hearing); United States v. Wade, 388 U.S. 218, 236–37,

87 S. Ct. 1926, 1937 (1967) (pretrial, postindictment lineup); White v. Maryland,

373 U.S. 59, 60, 83 S. Ct. 1050, 1051 (1963) (per curiam) (preliminary hearing).

None of these cases show that the Supreme Court has ever “question[ed] the fact

that the trial itself remains a critical stage of any criminal proceeding.” Burdine v.

Johnson, 262 F.3d 336, 347 (5th Cir. 2001). After all, the “[t]rial is the central and

focal point of the prosecutorial continuum, the forum in which the defendant’s

guilt or innocence is determined.” Vines v. United States, 28 F.3d 1123, 1140–41

(11th Cir. 1994) (Birch, J., dissenting).

The majority ruling turns the idea of a “critical stage” on its head. It wields

the “critical stage” inquiry as a sword against defendants, slicing away at the right

to counsel during the trial itself. 1 In addition to being contrary to Supreme Court

1 Professor Pamela S. Karlan describes a similar process of “surreptitious[] redefin[ition]” with respect to the prohibition on racial discrimination in jury selection articulated in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). See Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Mich. L. Rev. 2001, 2021 (1998). Professor Karlan explains that courts “have responded to the fact that many Batson violations might be found harmless if harmless error analysis were performed by declining to find a violation in the first place.” Id. In similar fashion, the majority here finds no violation of Cronic by redefining the

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doctrine, this inquiry is not practical. Despite its hundred-plus pages of exhaustive

treatment of cases from across the courts of appeals, the majority opinion leaves

more questions than answers about when Cronic applies. Would a twenty-minute

disappearance of counsel be enough? A half hour? Ninety percent of the

government’s case-in-chief? How about an absence for all of one government

witness’s testimony? The Supreme Court’s treatment of the “critical stage” makes

clear that we shouldn’t be asking those questions. 2 The question I read Cronic to

require us to ask is much more straightforward. It asks whether the trial ever

proceeded with no lawyer standing between the accused and the government. The

Supreme Court has told us what to do when the answer to that question is yes:

reverse the conviction. See Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 &

n.25.

parameters of the right to counsel at a critical stage of trial. By doing so, it avoids automatic reversal. As Professor Karlan explains, “when courts cannot calibrate the remedy, they fudge on the right instead.” Id. at 2015. 2 Though I agree with Judge Rosenbaum’s explanation of Cronic and structural error in Parts I and II of her well-reasoned concurrence, I, like Judge Wilson, cannot agree with the proposal for a de minimis carve-out. Applying a de minimis exception dulls the precision of a presumed-prejudice rule and creates line-drawing issues in the same way as does the majority’s approach. After all, if a seven-minute absence is so de minimis that we can examine actual prejudice, what absence would warrant the Cronic presumption? Again, twenty minutes? A half hour? It’s not clear how a court would decide. More importantly, I do not think we should sort large from small structural errors based on proportions and percentages.

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I certainly understand that reversing a conviction because counsel was gone

for less than 1% of the entire trial may seem like an overcorrection. But the

Supreme Court’s insistence that the total absence of counsel falls within the “very

limited class” of structural errors reflects the Court’s belief that the damage from

such an absence is impossible to measure. See Johnson v. United States, 520 U.S.

461, 468, 117 S. Ct. 1544, 1549 (1997). It’s true, as the majority points out, that

the Supreme Court “has applied harmless-error analysis to a wide range of errors

and has recognized that most constitutional errors can be harmless.” Arizona v.

Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991). See Maj. Op. at 76–

77. But the Supreme Court has also repeatedly recognized that it is structural error

“when counsel [i]s either totally absent, or prevented from assisting the accused

during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25, 104 S. Ct.

at 2047 n.25; see, e.g., Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1375

(2015); Bell v. Cone, 535 U.S. 685, 695–96, 122 S. Ct. 1843, 1850–51 (2002);

Geders v. United States, 425 U.S. 80, 91, 96 S. Ct. 1330, 1337 (1976); Herring v.

New York, 422 U.S. 853, 864–65, 95 S. Ct. 2550, 2556 (1975); Brooks v.

Tennessee, 406 U.S. 605, 612–613, 92 S. Ct. 1891, 1895 (1972); Hamilton, 368

U.S. at 55, 82 S. Ct. at 159.

The majority reads this history to say there’s no reason to distinguish the

right at issue here from those rights the Supreme Court has subjected to harmless-

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error review. Indeed, the majority says it would be “special treatment” to exempt

the right to have your lawyer with you at trial from harmless-error review. Maj.

Op. at 126. This has it the wrong way around. The right to the presence of counsel

is one of the rare rights for which the Supreme Court has presumed prejudice. It

did so for a simple reason: “Of all the rights that an accused person has, the right to

be represented by counsel is by far the most pervasive for it affects his ability to

assert any other rights he may have.” Cronic, 466 U.S. at 654, 104 S. Ct. at 2044

(quotation omitted); see also Kaley v. United States, 571 U.S. __, 134 S. Ct. 1090,

1107 (2014) (Roberts, C.J., dissenting) (“In many ways, this is the most precious

right a defendant has, because it is his attorney who will fight for the other rights

the defendant enjoys.”). The Supreme Court singled this right out for “special

treatment,” and it is not for us to withdraw that protection.

I realize that debates like the one we have here could lead the Supreme

Court to decide, in the future, that the right to counsel at a “critical stage” of trial is

subject to harmless-error review. But it has not done so yet. And in the absence of

such a directive, we should not be cutting away at the precious right to counsel

simply because we don’t like the prescribed remedy. The majority does that here.

Indeed the majority distorts the right to counsel at a “critical stage” to such an

extent that now the absence of defense counsel when the government is

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introducing inculpatory evidence—the time when a defendant needs his counsel

the most—is harmless. I respectfully dissent.

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JILL PRYOR, Circuit Judge, dissenting:

Despite our Court’s unanimous agreement that Alexander Roy’s Sixth

Amendment right to counsel was violated when his lawyer was absent briefly

during his criminal trial, collectively we have spilled a great deal of ink sorting out

whether and why this violation does or does not give Mr. Roy the right to a new

trial. A majority of this Court has decided that even though Mr. Roy’s lawyer’s

absence during the taking of evidence directly probative of guilt violated the Sixth

Amendment, this constitutional violation does not warrant a new trial because the

error was harmless. I understand the appeal of the majority’s approach. On this

record, I would not find it difficult to conclude that Mr. Roy suffered no prejudice

from his lawyer’s brief absence from the courtroom. But the Supreme Court has

told us not to look to the effect of the error in this case to determine whether a new

trial is required. So I write to explain why I dissent from the majority’s decision.

In my view, because Mr. Roy had no counsel beside him at trial while a

witness gave incriminating testimony against him, we must reverse his conviction

and remand for a new trial.1 The Supreme Court explained in United States v.

Cronic that “if the accused is denied counsel at a critical stage of his trial,” such

1 I follow the lead of my colleagues in limiting my analysis to circumstances in which the government offers incriminating evidence while a defendant’s lawyer is absent, as was the case here. I do not mean to suggest, however, that counsel’s absence during the taking of directly inculpatory evidence is the only circumstance in which the absence of counsel could amount to a constitutional violation. See infra note 2.

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error is structural, meaning it is not subject to a harmless error analysis. 466 U.S.

648, 659 (1984). Rather, prejudice is presumed. Id. Contrary to the position of a

majority of the Court, nothing in Cronic suggests that counsel must be absent for a

substantial part of a critical stage for the error to be structural or that structural

error may be judged with reference to minutes, percentages, or proportions of a

trial.2 By my reading of Cronic (a reading I share with Judges Wilson and

Martin), Mr. Roy’s lawyer’s absence, brief though it was, while the government

was introducing evidence of his guilt meant that Mr. Roy was “denied counsel at a

critical stage of his trial,” a structural error requiring reversal. Id.

I maintain this view even though were we to apply a harmless error analysis

to the facts of this case, I would be inclined to agree with a majority of my

colleagues that the absence of Mr. Roy’s counsel from the courtroom caused him

no prejudice: counsel’s absence was very brief, particularly with reference to the

trial as a whole; we know from the transcript what transpired in counsel’s absence

and when he returned; and the testimony counsel missed largely was repeated upon

his return. I believe that a new trial is required, however, because the Supreme

Court has directed in no uncertain terms that when an error is structural, it is

2 I note Judge Martin’s observation that the Supreme Court’s inclusion of proceedings beyond the trial itself in what constitutes a “critical stage” reflects an expansive view of the denial of the right to counsel for which prejudice is presumed, not a narrower one. See Martin Op. at 268-69.

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categorically so. A “case-by-case inquiry into prejudice” simply is inappropriate

where structural error exists. Strickland v. Washington, 466 U.S. 668, 692 (1984);

see Neder v. United States, 527 U.S. 1, 14 (1999) (describing structural error as

“categorical”). 3 Regardless of how we couch it, any evaluation of facts specific to

Mr. Roy’s lawyer’s absence necessarily is not categorical.4 So, even though it’s

tempting, we may not peek at those facts in determining whether the error is

structural. See Cronic, 466 U.S. at 658 (noting that structural errors are those

errors that, as a category rather than individually, involve “circumstances that are

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

particular case is unjustified”).

The result Cronic dictates (and my dissenting colleagues and I would reach)

reflects that “[t]he assistance of counsel is one of the safeguards of the Sixth

Amendment deemed necessary to insure fundamental human rights of life and

3 I find helpful Judge Wilson’s discussion of the Supreme Court’s recent decision in Williams v. Pennsylvania, 136 S. Ct. 1899 (2016). Williams concerned the failure of a judge to recuse on account of a conflict rather than the absence of counsel, but both can be structural errors, so in that sense the case is instructive. In Williams, as Judge Wilson explains, the Supreme Court held that the judge’s failure to recuse was structural error, requiring reversal and a new appeal, even though the Court had ample reason to conclude that the result of the appeal would have been the same without the error. See Wilson Op. at 260-61. If in deciding whether the error was structural the Supreme Court had engaged in a case-by-case (rather than categorical) inquiry into whether the effect of the judge’s failure to recuse was known or could be determined, the Court most likely would have found no structural error. 4 Of course, in an absence of counsel case, to determine that structural error has occurred it may be necessary for a court to find facts related to whether counsel was absent and whether inculpatory evidence was presented during the absence. But once a court answers “yes” to these preliminary questions, no case-by-case determination is permitted.

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liberty. The Sixth Amendment stands as a constant admonition that if the

constitutional safeguards it provides be lost, justice will not still be done.” Gideon

v. Wainwright, 372 U.S. 335, 343 (1963) (alterations and internal quotation marks

Considering that Mr. Roy’s case is the first this Circuit has seen where a sole

defendant is left without counsel during the presentation of incriminating evidence,

I think it’s fair to say such circumstances are rare. The majority worries, however,

that “[b]ecause there is no principled way to limit an application of Cronic to

single-defendant trials, a holding in favor of Roy would have far-reaching effects”:

Whatever measures a judge takes . . . , it will be practically impossible to prevent presumptive prejudice error in a large, multidefendant, long-running trial. See Green v. Arn, 809 F.2d 1257, 1265 (6th Cir. 1987) (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.”).

Maj. Op. at 58-59 (quoting United States v. Roy, 761 F.3d 1285, 1323 (11th Cir.)

(Carnes, C.J., dissenting) (some internal citations omitted), reh’g en banc granted,

opinion vacated, 580 F. App’x 715 (11th Cir. 2014)). I am not as troubled by the

burden on trial judges—nor do I believe it would be practically impossible—to

ensure, even in lengthy multi-defendant trials, that each defendant is never left

without a lawyer present.

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Judge Rosenbaum points out that, as guardians sworn to protect the

constitutional right of defendants to counsel in criminal trials, trial judges

necessarily are charged with vigilantly policing that right. See Rosenbaum Op. at

190-91, 205. In most every case, fulfilling this duty will not be onerous. That is

because accompanying the duty to protect defendants’ right to counsel is the trial

judge’s singular authority to control the courtroom, including the timing and

circumstances under which the trial can proceed.

As Judge Rosenbaum observes, trial judges can and regularly do ask the

lawyers for all parties whether they are ready before proceeding. See id. at 205. In

the case of a multi-defendant trial, perhaps the trial judge will have to read a dozen

or so co-defendants’ names and confirm the presence of counsel for each one.

Maybe this will take an extra minute or two at the beginning of the trial day and

after each recess. I am not bothered by adding a few minutes to the trial day to

ensure that each defendant in the courtroom has a lawyer present.

I am confident that trial judges can keep a lawyer for each co-defendant

present throughout the taking of evidence. At the beginning of a multi-defendant

trial, and during the course of its other instructions to counsel and the parties, the

judge can easily pause to instruct the lawyers for the defendants that if any lawyer

needs to leave the courtroom during the taking of evidence, with the result that her

client would be left without a lawyer representing him during her absence, the

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lawyer attempting to depart must inform the court before leaving. 5 The trial judge

can certainly warn that if a lawyer violates this instruction she will face sanctions,

or worse.6 See 18 U.S.C. § 401 (permitting a district court to punish by fine or

imprisonment, or both, if an attorney disobeys the court’s “lawful writ, process,

order, rule, decree, or command”).

If a lawyer speaks up and says he needs to be excused from the courtroom

temporarily, the trial judge has choices available, none of which is likely to take a

substantial amount of time or vary much from how courts ordinarily handle such

situations. The judge could ask the lawyer to wait until a recess, briefly pause the

taking of any evidence and await the lawyer’s return, or conduct a colloquy with

5 I agree with the majority that the presence of lawyers for co-defendants—even when a co- defendant’s lawyer agrees to cover for an absent defense lawyer—is irrelevant to the structural error inquiry unless the defendant knowingly and voluntarily waives the right to the presence of his own lawyer. See Maj. Op. at 56-57; Olden v. United States, 224 F.3d 561, 568-69 (6th Cir. 2000) (holding that defendant was denied counsel even though his lawyer asked another defendant’s lawyer to “take notes or whatever” in the defendant’s lawyer’s temporary absence); United States v. Russell, 205 F.3d 768, 769-72 (5th Cir. 2000) (reversing conspiracy conviction under Cronic when a lawyer representing a co-defendant agreed to “sit in” for the defendant’s absent counsel); Green, 809 F.2d at 1259-63 (upholding reversal of conviction of Green, one of three defendants at trial, due to her lawyer’s temporary absence during the cross-examination of a witness even though Green’s lawyer and Green’s co-defendants’ lawyer had agreed that the co- defendants’ lawyer would do the cross-examination on behalf of all defendants). 6 And given that many defense lawyers are repeat players in the courts in which they practice, the threat of sanctions (and any accompanying reputational harm) likely would suffice to prevent attorney misconduct. I acknowledge the possibility of intentional attorney misconduct in an attempt to create error, but I have enough faith in our colleagues at the Bar to believe that if it occurred at all, it would be exceedingly rare and could be dealt with using all the means at the courts’ disposal. The remote possibility that the rare lawyer might abuse the system in this way does not demonstrate that my interpretation of Cronic would lead to absurd results. Neither should it otherwise guide or influence our jurisprudence.

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the departing lawyer’s client to ensure that any waiver of the defendant’s right to

the presence of counsel is made voluntarily and with full knowledge of his rights.

As I see it, any additional work on the part of the trial judge to ensure that

each defendant always has one lawyer present in the courtroom to represent him

during the taking of evidence almost never will be onerous. And if the burden is,

on the rare occasion, onerous, let it be so: trial judges are sworn to protect the

constitutional rights of the criminal defendants who stand trial before them. I can

scarcely think of a more important duty than the protection of the right to counsel.

If ensuring that right is protected takes an hour, three hours, or even a full day of a

lengthy trial, I am comfortable that the burden on the trial judge is outweighed by

the gravity of the fundamental constitutional rights of criminal defendants.

I respectfully dissent because Mr. Roy’s Sixth Amendment right was

violated when he went without counsel while the jury heard testimony that directly

incriminated him. I would reverse his conviction under Cronic and remand for a

new trial.