United States of America, Plaintiff-appellee, v. Carlos Cuchet, Defendant-appellant, 197 F.3d 1318 (11th Cir. 1999)

Defendant appeals his convictions and sentences for multiple narcotics offenses. We conclude that the district court likely did err in excluding Defendant, over his express objection, from a part of the confidential voir dire of prospective jurors conducted at the bench. But, because the error was harmless, we affirm Defendant's convictions. We also affirm Defendant's sentences.

Background

This case is about a drug conspiracy involving seven named defendants. The government's investigation of the conspiracy began when an informant, William Siple, began cooperating with officials at the federal Drug Enforcement Agency ("DEA"). Siple, while working with DEA agents, later purchased, on different occasions, marijuana and lysergic acid diethylamide ("LSD") from Defendant Carlos Cuchet. Siple also provided DEA agents with information implicating other defendants, including Cuchet's paramour, Lisa Parra, and one of Cuchet's suppliers, Thomas Gorecki, in drug crimes.

A superseding indictment was returned charging Cuchet with conspiring to possess with intent to distribute LSD, in violation of 21 U.S.C. 841(a) (1) & 846 (Count I); distribution of marijuana, in violation of 21 U.S.C. 841(a) (1) (Count VII); and distribution of LSD, in violation of 21 U.S.C. 841(a) (1) & 18 U.S.C. 2 (Count VIII).

During jury selection, after directing inquiries to the entire jury pool, the district court separately questioned thirteen prospective jurors at the bench. The sidebar questions concerned the jurors' prior involvement with illegal drugs and with the criminal justice system.¹  Lawyers for Cuchet and the government were present during the sidebar conference, and they were allowed to ask the jurors questions.

After the first juror had been interviewed, defense counsel asked that Cuchet be allowed to be present during the questioning. The district court denied the request, acknowledging that the law permitted Cuchet to be present but saying it would be "too cumbersome." The district court then continued to question the jurors outside of Cuchet's direct observation and range of hearing. At least two, and possibly as many as three,²  of the jurors who were questioned separately at the bench ultimately sat on the jury.

At trial, the government presented evidence of Cuchet's involvement in the charged offenses. Parra and Gorecki had agreed to cooperate with the government, and they testified against Cuchet. The jury found Cuchet guilty of all counts against him. The district court sentenced him to 360 months' imprisonment for Counts I and VIII and to 120 months' imprisonment for Count VII, to run concurrently. Cuchet appeals his convictions and sentence.

Discussion

Cuchet argues that he is entitled to a new trial based on the district court's having prevented him from being present during the sidebar questioning of prospective jurors.³  Cuchet argues that, because he was unable personally to observe the prospective jurors' demeanor and to hear their voices in answering questions, his ability to exercise his peremptory challenges-which may be exercised for arbitrary, subtle reasons-was impaired.

Federal Rule of Criminal Procedure 43(a) gives a defendant the right to be present "at every stage of the trial including the impaneling of the jury."⁴  And we have previously said that "excluding the defendants or their attorneys from the interrogation of the jurors arguably deprive [s] them of [the] right [to be present during every stage of the trial]." United States v. Yonn, 702 F.2d 1341, 1345 (11th Cir. 1983).

Although the right to be present is not absolute, Illinois v. Allen, 397 U.S. 337, 342, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970), the court probably did err in excluding Cuchet from observing the sidebar questioning in this case. Considering the plain language of the rule in the light of Cuchet's specific request to be present and the absence of unusual circumstances in this case which would make Cuchet's presence unfeasible,⁵  the trial court probably should have allowed Cuchet's request to be present. See also United States v. Washington, 705 F.2d 489, 498 (D.C. Cir. 1983) ("In normal cases the defendant upon request should be allowed to observe and hear juror responses made at the bench.").

But not every violation of Rule 43(a) requires reversal. See Yonn, 702 F.2d at 1345 (concluding that exclusion of defendant from questioning of member of jury, even if a violation of Rule 43, was harmless error); Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975) (" [A] violation of Rule 43 may in some circumstances be harmless error [.]").⁶ And, given all of the circumstances before us, the error in this case would be harmless. Cuchet was present during the general voir dire that took place in open court. See United States v. Brantley, 68 F.3d 1283, 1291 (11th Cir. 1995) (assuming, for sake of argument, Rule 43 violation-based on defendants' absence during time peremptory challenges were exercised-and concluding that violation was harmless because defendants were present during general voir dire and had opportunity to discuss with counsel any misgivings about particular venire members). During the sidebar questioning, which concerned only limited topics, defense counsel was given anopportunity to question each of the prospective jurors at the bench; and defense counsel did question many of them.

After the sidebar conference, defense counsel was also given some opportunity⁷  to review his notes and to confer with Cuchet, who remained present during the peremptory-strike phase of jury selection. See United States v. Willis, 759 F.2d 1486, 1500 (11th Cir. 1985) (stating that, even assuming a Rule 43 violation based on defendants' exclusion from in-chambers voir dire, error was harmless: defense counsel thoroughly questioned venire members, court granted recess to allow defendants to talk to counsel, and strikes were exercised in court in presence of defendants). And, considering the trial record, the evidence against Cuchet-particularly the testimony of Gorecki, Parra, and Siple-was overwhelming.⁸  See United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999) ("Overwhelming evidence of guilt is one factor that may be considered in finding harmless error.").

The district court thus did not commit reversible error in this case. The judgment of the district court must be AFFIRMED.

AFFIRMED.