United States v. Reyes, No. 12-50386 (9th Cir. 2014)
Annotate this CaseDefendant appealed his conviction of one count of attempted bank robbery. The court concluded that the district court violated Rule 43 when it questioned Juror H outside of defendant's earshot, but the district court did not violate the rule by refusing defendant's request to be present during the other seventeen side bar exchanges; the side bar voir dire of Juror H was harmless because the evidence of defendant's guilt was overwhelming; no constitutional right to be present was violated when the district court refused defendant's request to join his attorneys at the side bar conferences during jury selection because the conferences were not instances where defendant's absence might frustrate the fairness of the proceedings and, rather, any presence at side bar would have been "but a shadow"; and the district court did not abuse its discretion in imposing a substantively unreasonable sentence. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for attempted bank robbery in a case in which the defendant contended that the district court violated his right to be present at trial by excluding him from certain side bar exchanges during jury selection. The panel held that under Fed. R. Crim. P. 43, the defendant has a right to be personally present during voir dire of prospective jurors, and that the district court violated Rule 43 when it questioned Juror H outside of the defendant’s earshot. The panel held that the error was harmless because the evidence of the defendant’s guilt was overwhelming. The panel held that meetings between counsel and the court at which the participants discuss whether jurors should be excused for cause, exercise peremptory challenges, or decide whether to proceed in the absence of prospective jurors are all examples of “a conference or hearing on a question of law” from which the defendant may, under Fed. R. Crim. P. 43(b)(3), be excluded at the district court’s discretion. The panel therefore held that the district court did not violate Rule 43 when it excluded the defendant from seventeen other side bar exchanges. The panel held that the defendant’s exclusion from the side bar conference at which the district court conducted voir dire of Juror H did not violate the defendant’s constitutional right to be present because the defendant’s presence would have been “but a shadow”; it was not an instance where the defendant’s absence might frustrate the fairness of the proceedings. The panel held that the district court’s decision to exclude the defendant from the seventeen other side bar exchanges – where the attorneys argued that jurors should be excused for cause, exercised peremptory challenges, and discussed whether to proceed in the absence of some prospective jurors – was likewise consistent with the Constitution. The panel concluded that the district court did not impose a substantively unreasonable sentence.
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