Miguel Vines, Petitioner-appellant, v. United States of America, Respondent-appellee, 28 F.3d 1123 (11th Cir. 1994)

This appeal arises out of the denial of Miguel Vines's Sec. 2255 motion. On this appeal we must determine whether the temporary absence of a defendant's trial counsel during the presentation of evidence necessarily gives rise to an irrebuttable presumption of prejudice that mandates vacation of that defendant's conviction. We conclude that the temporary absence of counsel during the presentation of evidence is not per se violative of the Sixth Amendment right to the assistance of counsel.

In June of 1988, a senior Customs inspector examined the shipping documents of a shipment of ninety-one boxes of fresh fish that had arrived at the Miami International Airport on a flight from Panama. Not recognizing the company listed as the shipment's consignee, and suspicious of the address to which the shipment was to be delivered, the Customs inspector determined that the shipment should be physically inspected. An inspection revealed that at least one of the ninety-one boxes contained cocaine. Based on that discovery, the entire shipment was placed under surveillance by Customs.

Several men arrived at the airport and loaded the ninety-one boxes onto a truck and transported the boxes to a warehouse. At the warehouse, two men unloaded the boxes under the direction of a third man, Manuel Casas. Eighty-five of the boxes were moved inside the warehouse and the other six were loaded into a small pickup truck driven by Jorge Fabal. Fabal drove the truck to an apartment complex.

At the complex, Fabal exited the truck and entered an apartment. Shortly thereafter, Fabal left the apartment with his brother-in-law, Miguel Vines. Vines entered a van parked next to the truck that Fabal had driven. With Vines's assistance, Fabal moved the six boxes from the truck to the van. A short time passed, and Fabal reloaded the six boxes into the truck. Then, Vines moved the truck and Fabal parked a car next to the van. At that point, Fabal and Vines moved several opaque plastic items from the van to the trunk of the car.

After that final transfer, Customs agents arrested Vines and Fabal. Agents recovered from the trunk of the car five or six packages wrapped tightly in yellow tape and covered with plastic. The packages contained 95.33 kilograms of 81% pure cocaine. Other Customs agents arrested Casas at the warehouse and proceeded to search the warehouse pursuant to a search warrant.

A federal grand jury returned a two-count indictment charging Casas, Vines and Fabal with: (1) conspiracy to possess with intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. § 846, and (2) possession of at least five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. (Ex. 1-1). Casas and Vines were tried together.¹  The trial lasted two days. At about 4:15 p.m. on the first day of trial, the court excused Vines's counsel for the remainder of the day.²  Prior to Vines's counsel's departure, the court instructed the jury: "Members of the jury, Mr. Shapiro [Vines's attorney] has got another important matter that he has to attend to. This witness won't testify as to his particular client. His client has waived his presence for the remainder of the afternoon, so we will excuse Mr. Shapiro at this time." (Ex. 2 at 142-43).³  During Vines's counsel's absence, two witnesses testified for the prosecution: Special Agent Hank Blair and Donald Evans.⁴ 

Blair's testimony centered around the arrest of Casas and the search of the warehouse. (Ex. 2 at 143-160). Blair testified about items found in Casas's briefcase at the warehouse. In addition, Blair testified, over Casas's attorney's objection, that the items discovered in the briefcase and the manner of shipping employed in this case fit the modus operandi of contraband smugglers. Casas's attorney cross-examined Blair about the arrest of Casas, the search, the evidence secured from that search, and Blair's opinion regarding the specific facts of this case vis-a-vis drug smuggling operations generally. (Ex. 2 at 160-176).

Evans, as part owner and operator of the warehouse, simply testified about leasing the space where the fish shipment was delivered. (Ex. 2 at 176-182). Evans could not identify the individuals to whom he had leased the space. (Ex. 2 at 179). Casas's attorney briefly cross-examined Evans about the nature of the relevant lease. (Ex. 2 at 182). Thereafter, the court called a recess. (Ex. 2 at 182-83). The trial resumed the following Monday morning with Vines's counsel present.

Casas was convicted on both Counts I and II. (Ex. 1-53). Vines was acquitted on Count I, the conspiracy charge, and convicted on Count II, the distribution charge. (Id.).

On direct appeal, Vines and Casas challenged the sufficiency of evidence supporting their convictions. Vines also contested the use of a modified Allen⁵  charge and claimed ineffective assistance of counsel because of the absence of his attorney during the taking of evidence. In an unpublished opinion, we affirmed the convictions but declined to address Vines's claim of ineffective assistance of counsel, noting that it should be raised in a 28 U.S.C. § 2255 motion. United States v. Casas, 897 F.2d 535 (11th Cir. 1990) (Ex. 1-98 at 8, 9 n. 5).

Thereafter, Vines, proceeding pro se, filed a Sec. 2255 motion. (R.1-100). Therein, Vines advances two arguments in support of his contention that his Sixth Amendment right to counsel has been violated. First, Vines argues that he did not voluntarily and knowingly waive his right to counsel. (Id. at 5). Second, Vines asserts that he was denied effective assistance of counsel based on his trial counsel's absence during the taking of evidence. (Id.). Without an evidentiary hearing, a magistrate judge recommended that Vines's Sec. 2255 motion be denied. (R. 1-116 at 12). In so recommending, the magistrate judge concluded that Vines waived his right to counsel, that the temporary absence of his counsel did not warrant a presumption of prejudice, and that Vines suffered no prejudice as a consequence of his counsel's temporary absence during trial. (Id. at 9, 11-12). Vines objected to the magistrate judge's report and recommendation. (R. 1-117). The district court denied Vines's Sec. 2255 motion " [f]or the reasons stated in the report of the Magistrate Judge." (R. 1-118). This appeal follows.

II. CONTENTIONS OF THE PARTIES & ISSUE ON APPEAL

Vines contends that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. In support of that contention, Vines argues that under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), the temporary absence of counsel gives rise to an irrebuttable presumption of prejudice and his conviction must therefore be vacated. In the alternative, Vines argues that his conviction must be vacated because prejudicial testimony was taken while his trial counsel was absent. The Government counters that no prejudicial testimony was taken during Vines's counsel's absence and that Vines is not entitled to a presumption of prejudice under Cronic.⁶  Accordingly, the Government argues that the district court's denial of Vines's Sec. 2255 motion should be affirmed and Vines's conviction should stand.

The claim that the temporary absence of trial counsel during the taking of evidence constitutes a Sixth Amendment violation presents a mixed question of law and fact and, as such, is subject to plenary review. See Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir. 1989) (concluding that an ineffective assistance of counsel claim, which presents a mixed question of law and fact, is subject to plenary review), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 805 (1990).

The Sixth Amendment guarantees that " [i]n all criminal prosecutions, the accused shall enjoy the right to ... the Assistance of Counsel for his defence." U.S. Const. amend. VI. " [T]he right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970). To establish a claim of ineffectiveness of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a defendant must demonstrate (1) that his counsel's performance was deficient and (2) that his counsel's deficient performance resulted in prejudice. Id. at 687, 104 S. Ct. at 2064. Under Strickland, prejudice means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

Vines argues that his Sixth Amendment right to counsel was violated because his trial counsel was temporarily absent during the taking of evidence. Strickland assumes the presence of counsel and is therefore inapplicable in the absence of counsel context. Strickland is therefore inapplicable in this case.⁷ 

In the companion case to Strickland, United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), the Supreme Court carved out a narrow exception to the two prong Strickland test. Cronic recognizes that 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. 466 U.S. at 658, 104 S. Ct. at 2046. Cronic teaches that prejudice will be presumed if: (1) counsel is completely denied; (2) counsel is denied at a critical stage of trial; or (3) counsel fails to subject the prosecution's case to meaningful adversarial testing. Id. at 659, 104 S. Ct. at 2047. This presumption of prejudice is seemingly irrebuttable since "the cost of litigating [its] effect ... is unjustified." Id. at 658, 104 S. Ct. at 2046.

Vines contends that where a defendant is temporarily denied the assistance of counsel, that defendant is entitled to an irrebuttable presumption of prejudice under Cronic. In order to apply Cronic in this case, however, we must conclude that Vines's claim falls under one of the three circumstances Cronic enumerates as an exception to the Strickland standard.⁸  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.

Vines argues that under Cronic the taking of evidence is a critical stage of trial per se. Vines proffers no authority that compels this court to reach that conclusion; and, we decline to give birth to a rule that the taking of evidence is necessarily a critical stage of trial. Upon review of the record, we find that no evidence directly inculpating Vines was presented during his counsel's absence. Where, as in this case, no evidence directly inculpating a defendant is presented while that defendant's counsel is absent, we decline to hold that counsel was absent during a critical stage of trial within the meaning of Cronic. 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.

Having concluded that Vines's temporary absence of counsel claim cannot be analyzed under Strickland or Cronic, we must determine the appropriate analytical framework for reviewing his claim.⁹  Vines asserts that his Sixth Amendment right to counsel was violated because his counsel was absent during the taking of evidence. We assume, without deciding, that Vines establishes constitutional error by showing that his trial counsel was absent during the taking of evidence. In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Supreme Court held that "there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Id. at 22, 87 S. Ct. at 827.

We have previously applied the harmless-error analysis in the contexts of absence of counsel at a preliminary hearing, Thomas v. Kemp, 796 F.2d 1322 (11th Cir.), cert. denied, 479 U.S. 996, 107 S. Ct. 602, 93 L. Ed. 2d 601 (1986), and absence of counsel when the court delivered a modified Allen charge to the jury, United States v. Rapp, 871 F.2d 957 (11th Cir.), cert. denied, 493 U.S. 890, 110 S. Ct. 233, 107 L. Ed. 2d 184 (1989); see also United States v. Guida, 792 F.2d 1087, 1091-94 (11th Cir. 1986) (applying harmless-error analysis in a case where a judge, responding to a request by the jury, allowed the jury to study an unredacted copy of a witness and exhibit list without notifying or consulting defendant's counsel). It would be incongruous to hold that the absence of counsel while a jury is being instructed should be subject to harmless-error analysis but that the absence of counsel during the taking of non-inculpatory testimony is not susceptible to harmless-error analysis.

However, in order to determine whether Vines's claim is susceptible to harmless-error analysis, we must first address the query of whether the temporary absence of Vines's counsel during the taking of evidence amounts to a "structural defect" or a "trial error." Duest v. Singletary, 997 F.2d 1336, 1338 n. 3 (11th Cir. 1993), cert. denied, --- U.S. ----, ----, 114 S. Ct. 1107, 1126, 127 L. Ed. 2d 418 (1994). Trial errors are subject to harmless-error analysis; structural defects are not. Id. A trial error is an "error which occur [s] during the presentation of [a] case to [a] jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless." Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302 (1991). Conversely, structural defects affect "the framework within which the trial proceeds," Id. at 310, 111 S. Ct. at 1265; "they involve deprivations of constitutional protections so basic that in their absence no criminal trial can be deemed reliable, nor any punishment fundamentally fair," Duest, 997 F.2d at 1338 n. 3. Typical structural errors are the total deprivation of the right to counsel at trial, a trial judge who is not impartial, the unlawful exclusion of members of the defendant's race from a grand jury, the denial of the right to self-representation at trial, and the denial of the right to a public trial. Fulminante, 499 U.S. at 309-10, 111 S. Ct. at 1265.¹⁰ 

Vines alleges constitutional error based on the temporary absence of his trial counsel during the taking of evidence--the testimony of Blair and Evans. Vines contends that if his counsel had been present he would have objected to Blair's drug smuggler profile testimony, and if overruled, he would have requested a limiting instruction as to Vines. In addition, Vines argues that if his counsel had been present he would have cross-examined both Blair and Evans. We conclude that counsel's failure to object and cross-examine are "capable of quantitative assessment in relation to all the evidence at trial in order to determine whether it was harmless." Duest, 997 F.2d at 1338 n. 3.¹¹ 

Vines proffers no authority that would compel us to conclude that the temporary absence of counsel is necessarily a structural defect. The Supreme Court has held that the total deprivation of counsel amounts to a structural defect. Fulminante, 499 U.S. at 309, 111 S. Ct. at 1265 (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)). That holding is predicated upon the recognition that " [t]he entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant." Id. at 309-10, 111 S. Ct. at 1265. We conclude that the temporary absence of a defendant's trial counsel during a portion of the actual trial does not necessarily affect the conduct of the entire trial. While trial counsel may exercise poor judgment in absenting himself or herself from a portion of a trial, such flawed judgment does not necessarily infect the entire trial. For example, in a multi-defendant trial, testimony may be presented regarding one defendant that does not inculpate another defendant. Though we do not countenance the abandonment of a defendant by his counsel even during the presentation of non-inculpatory testimony, we cannot say that such an absence compromises the entire trial of that defendant such that harmless-error analysis would be inapplicable. Because we find that Vines's counsel's alleged errors are capable of quantitative assessment and that no inculpatory evidence was presented during the temporary absence of his counsel, we conclude that the absence of Vines's counsel constitutes a trial error subject to harmless-error analysis.¹² 

In Brecht v. Abrahamson, --- U.S. ----, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), the Supreme Court held that the harmless-error standard enunciated in Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), "applies in determining whether habeas relief must be granted because of constitutional error of the trial type." Brecht, --- U.S. at ----, 113 S. Ct. at 1722.¹³  Because Vines's Sec. 2255 motion is a collateral attack, we must apply the Kotteakos standard. Under Kotteakos, a defendant is entitled to reversal only when error resulted in "actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.' " See United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986) (quoting Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253). The appropriate inquiry is not whether the jury was right in its judgment

regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury's decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting.

. . .

[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 764-65, 66 S. Ct. at 1247-48. Thus, our task is to determine whether the temporary absence of Vines's counsel during the testimony of Blair and Evans had a substantial influence on the jury's verdict in this case.

In determining whether Blair's and Evans's testimony had a substantial influence on the jury's conviction of Vines on Count II--possession with intent to distribute cocaine--we must address two questions. First, did that testimony directly inculpate Vines? Second, did that testimony indirectly prejudice Vines's defense of the offense of which he was convicted?

As to the first question, we find that neither Blair's nor Evans's testimony directly inculpates Vines. Rather, upon review of the record, we find that Blair's and Evans's testimony simply inculpates Casas and serves to describe the overarching drug smuggling operation in this case while paralleling it to the typical modus operandi of contraband smugglers.

As to the second question, Vines argues that he was indirectly prejudiced by Blair's and Evans's testimony. Vines asserts that the jury applied the testimony regarding the modus operandi of contraband smugglers to him and that if his counsel had been present during that testimony such prejudice could have been avoided. In support of that assertion, Vines advances three spurious arguments. Vines argues that if his counsel had been present during such testimony, his counsel would have objected to the admission of Blair's testimony regarding the modus operandi of drug smugglers. (Appellant's Br. at 43). At the very least, Vines argues, such an objection would have yielded "an instruction to the jury that the drug smuggler profile testimony was not applicable to VINES." (Id.). Finally, Vines argues that if his counsel had been present he would have cross-examined Blair and Evans in order to establish that there was no connection whatsoever between Vines and the matters about which Blair and Evans testified. (Appellant's Br. at 42).¹⁴ 

We find Vines's argument regarding cross-examination totally unpersuasive. Neither Blair nor Evans directly referred to, or even alluded to, Vines. Vines argues that his counsel could have emphasized the fact that neither Blair's nor Evans's testimony related to him. The cross-examination of a witness who has said nothing harmful to one's case is a perilous undertaking, and generally inadvisable. We reject the suggestion that Vines would have benefited from this kind of cross-examination.

We find equally unpersuasive Vines's argument that if his counsel had been present he could have prevented the admission of Blair's drug smuggler profile testimony. Vines's co-defendant's counsel objected to the admission of that testimony, and the trial judge overruled the objection. (Ex. 2 at 155-57). Vines's suggestion that his counsel's objection to Blair's testimony might have met with success is, at best, disingenuous.

Vines also argues that his counsel could have prevented him from being prejudiced by Blair's and Evans's testimony by requesting a limiting instruction. We note that prior to Blair's testimony, the judge instructed the jury that Blair "won't testify as to" Vines. (Ex. 2 at 142-43). We doubt that Vines was entitled to a more explicit limiting instruction. Assuming arguendo that Vines was entitled to a limiting instruction, we conclude that Vines suffered no harm as a consequence of the admission of Blair's testimony. We find nothing in Blair's and Evans's testimony that would have "substantially influenced" the jury to convict Vines of possession with intent to distribute cocaine--Count II. Vines's acquittal on Count I--the conspiracy charge--suggests that the jury did not link Blair's and Evans's testimony to Vines. Accordingly, we conclude that the temporary absence of Vines's counsel during the testimony of Blair and Evans was harmless.

We affirm the district court's denial of Vines's Sec. 2255 motion.

AFFIRMED.

BIRCH, Circuit Judge, dissenting:

By taking a harmless error analytical approach, the majority has overlooked the principal constitutional violation and issue on appeal: waiver of the Sixth Amendment right to counsel. Counsel's absence from trial, complete or temporary, is a fundamental constitutional deprivation that is not amenable to harmless error exception. While constitutional waiver of the right to counsel is recognized, it is doubtful that such waiver occurred in this case. Therefore, I respectfully dissent.

In relating the pertinent sequence of events at trial, the majority gives an incomplete description and omits a key fact--Vines, an Hispanic, does not speak or comprehensively understand English. Additionally, he had no previous criminal history. Prior to the judge's discussion with counsel outside the presence of the jury concerning excusing Vines's attorney, the arresting Customs agent had testified that he had read Vines's rights to him in Spanish. Ex. 2-82. Initiated by the district judge, the relevant discussion took place at approximately 3:00 P.M. on Friday, November 4, 1988, the first day of the two-day trial of Vines and codefendant Casas. In an apparent attempt to expedite the trial, the district judge explained that Vines's counsel had to leave at 4:15 P.M. and suggested that codefendant Casas's attorney "stand in" for Vines's counsel. Ex. 2 at 106. The judge then asked the government if its prospective witness would testify about Vines, to which the prosecutor responded "indirectly."¹ 

The district judge then made the following announcement to counsel:

THE COURT: When the jury comes back we will go on the record and then I will just tell the jury that you had another problem, I have released you and Mr. Tarkoff [Casas's attorney] will stand in for you during the rest of the afternoon.

....

MR. TARKOFF: To be honest with you, I would rather you tell the jury that Mr. Vines has waived [his] right to have counsel present during the balance of the afternoon than to tell them that I am standing in for him. It looks so conspiratorial in a conspiracy case.

THE COURT: All right.

MR. TARKOFF: Obviously if something happens that I think would affect him I would ask if we could have a side bar.

MR. XANTTOPOULOS: He is stepping in. Call it as it is.

Ex. 2 at 106, 107 (emphasis added). Following a brief recess, the judge told counsel that he was releasing Vines's counsel at 4:15 P.M. He also asked Vines if he waived the presence of his attorney, to which Vines responded with a single word, "Yes," and, subsequently asked the attorney if he had explained "it" to him, the portion of the trial transcript that the majority relegated to a footnote. Majority Op. at 1126 n. 3.

At the appointed time in the afternoon, the judge informed the jury that Vines's counsel was excused, that the prosecution witness who would testify in that absence would not relate to Vines, and that Vines had waived the presence of his counsel. During the following testimony, the Customs case agent aligned the shipment in this case with the modus operandi of contraband smugglers. Tarkoff objected to this testimony; the court overruled his objection. Tarkoff cross-examined the case agent as to his client, and he elicited that Casas was arrested because there was cocaine in the fish shipment.

The government then persuaded the judge to allow it to call an additional witness, who had not been considered before Vines's counsel left.³  The court's concern with this witness was brevity, not whether he might implicate Vines.⁴  This witness was the owner of the warehouse, where the fish shipment containing cocaine was destined. Tarkoff cross-examined the witness. Exhibits were admitted into evidence during the testimonies of the Customs case agent and the warehouse owner while Vines's counsel was absent. The trial adjourned at 5:15 P.M. and resumed at 8:30 A.M. on Monday, November 7, 1988.

On the second day of trial, another Customs case agent testified that he interviewed Vines in Spanish. Ex. 3 at 200. When Vines testified on the same day, he did so with an interpreter. On Tuesday, November 8, 1988, while the jury was deliberating, the trial judge was aware that Vines did not speak English fluently:

THE COURT: One of them doesn't understand any English?

MR. SHAPIRO [Vines's attorney]: He understands some English. I would waive the translator for purposes of this proceeding.

Ex. 4 at 2. There is no indication and there has been no representation that an interpreter was present when the judge excused Vines's attorney. We learned at oral argument that Vines's attorney was fluent in Spanish.

In his pro se section 2255 petition to vacate his conviction in the district court, Vines argued that his Sixth Amendment right to counsel had been violated on two bases. First, he contended that he did not voluntarily and knowingly waive his retained counsel's presence.⁵  Second, he argued that he was denied effective assistance of counsel.

In response, the government requested oral argument. Replying to the government, Vines requested an evidentiary hearing on whether he knowingly relinquished his Sixth Amendment rights. Without benefit of oral argument or an evidentiary hearing, a magistrate judge recommended that relief be denied because Vines did waive his attorney's presence and the testimony presented in the lawyer's absence did not relate directly to Vines's participation in the crimes charged and was not prejudicial to him. The magistrate judge predominantly analyzed Vines's petition as ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

After filing his pro se section 2255 petition, Vines retained counsel. His attorney filed timely objections to the magistrate judge's report and recommendation. He contended that Vines did not knowingly waive his attorney's presence and that he was denied effective assistance of counsel. Notwithstanding these objections, the district court denied relief to Vines " [f]or the reasons stated in the report of the Magistrate Judge." R1-118.

Vines pursued his contentions of the invalidity of his waiver of his attorney's presence and ineffective assistance of counsel in this appeal. As the majority concedes, ineffective assistance of counsel analysis under Strickland is inappropriate when counsel is absent.⁶  The only viable issue that Vines presents to us is waiver, and, indeed, I find it is dispositive. Yet, the majority chooses not to address the question of whether Vines waived his right to counsel.⁷  Majority Op. at 1126 n. 3.II. WAIVER ANALYSIS

The determination of whether waiver of counsel was knowing and intelligent is a mixed question of fact and law subject to de novo review. Strozier v. Newsome, 926 F.2d 1100, 1104 (11th Cir.), cert. denied, --- U.S. ----, 112 S. Ct. 350, 116 L. Ed. 2d 289 (1991). "The burden of proof is on petitioner to show that the waiver did not meet constitutional standards." Id.; see Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1025, 82 L. Ed. 1461 (1938). Accordingly, our review should encompass an examination of the facts and the governing law to decide whether Vines has shown that his waiver of counsel was unconstitutional.

"The assistance of counsel is a requisite to the very existence of a fair trial and the Sixth Amendment assures that a defendant cannot be deprived of personal liberty, whether the crimes charged are classified as petty, misdemeanor, or felony, unless he has legal counsel at trial, or he has understandingly, intelligently and voluntarily waived assistance of legal counsel." Ford v. Wainwright, 526 F.2d 919, 921 (5th Cir. 1976) (emphasis added). "The right to counsel ... attaches automatically and must be waived affirmatively to be lost...." Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S. Ct. 116, 116 L. Ed. 2d 85 (1991). The Supreme Court has emphasized the importance of protecting the right to counsel and carefully ascertaining the knowing and intentional waiver of this fundamental right:

" [C]ourts indulge every reasonable presumption against waiver" of fundamental constitutional rights and ... we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

Johnson, 304 U.S. at 464, 58 S. Ct. at 1023 (emphasis added) (footnotes omitted). Waiver of counsel must be voluntary, "in that it resulted from a free and deliberate choice and not from coercion." United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990). It is the "responsibility, obligation and duty of the Trial Judge " to make this "serious determination of waiver," and "such determinations should appear plainly on the record." Ford, 526 F.2d at 922 (emphasis added) (citing Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962)).

Vines contends that his simple answer, "Yes," to the trial judge's question as to whether he waived his right to counsel was not an effective waiver because it was not knowing and voluntary. As a stranger to the criminal justice system and with a limited understanding of English, Vines claims that he had no way of knowing the consequences of not having his counsel present at trial. Absent the benefit of the trial judge's discussing with Vines the potential consequences of his proceeding without counsel, the judge could not have known whether his waiver of counsel was knowing, intelligent and voluntary.

We do not know the nature of the pressing matter⁸  that required Vines's retained counsel to be absent from his client's trial on that Friday afternoon or the character of the discussion that he had with Vines prior to his departure.⁹  The content of the discussion between Vines and his counsel regarding the attorney's absence, however, is not dispositive of the waiver issue before us. Counsel cannot waive for a defendant "an 'inherently personal right of fundamental importance,' " such as the right to representation by counsel. United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.) (quoting Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987), cert. denied, 488 U.S. 817, 109 S. Ct. 54, 102 L. Ed. 2d 33 (1988)), cert. denied, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534 (1990). Affirming habeas relief for the temporary absence of defendant's counsel during trial, the Sixth Circuit faulted the trial judge for depriving the defendant of his right to counsel by arranging the counsel's absence with the attorney instead of the defendant:

Our holding that petitioner was denied a fair trial is buttressed by the actions of the trial judge. In Siverson [v. O'Leary, 764 F.2d 1208 (7th Cir. 1985) ], the Seventh Circuit noted that in situations where a defendant is without assistance of counsel at a critical stage, "the court can help protect the defendant's rights by at least insuring that the defendant is aware of and understands the right to have counsel present...." In the instant case, the trial judge seemed to believe that he and [the attorney] could decide, without consulting petitioner, when [the attorney] could absent himself from the proceedings. Thus, in a situation where the impairment of petitioner's Sixth Amendment right was easy to identify and prevent, the government instead acted to further the deprivation. In such circumstances there is little reason to allow the government to attempt to show a lack of prejudice.

Green v. Arn, 809 F.2d 1257, 1263-64 (6th Cir.) (emphasis added) (citations omitted), vacated on other grounds, 484 U.S. 806, 108 S. Ct. 52, 98 L. Ed. 2d 17 (1987), reinstated, 839 F.2d 300 (6th Cir. 1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989).

Regarding the determination that a trial judge must make to decide that a defendant has waived conflict-free counsel, we have decided that, " [a]lthough the court should try to elicit narrative replies, ' [m]ere assent in response to a series of questions from the bench' may in some cases constitute adequate waiver." United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.) (per curiam) (emphasis added) (quoting United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975)), cert. denied, --- U.S. ----, 114 S. Ct. 275, 126 L. Ed. 2d 226 (1993). Significantly, the trial judge failed to engage in any semblance of a colloquy with Vines to determine if he knowingly, intelligently and voluntarily waived his right to counsel. Had he done so, he immediately would have realized that Vines did not speak English, and this appeal might not be before us. Vines clearly was incapable of discussing in English the constitutional consequences of proceeding without his counsel with the trial judge.

Additionally, Vines may have felt coerced. The district judge had discussed his attorney's absence with that counsel and had agreed to dismiss Shapiro at 4:15 P.M. before he asked Vines if he waived his attorney's presence. Therefore, he presented the waiver of counsel question to Vines as a fait accompli because he already had decided to allow Shapiro to leave.

Vines's single-word, affirmative response is insufficient waiver to show the relinquishment of his Sixth Amendment right to counsel under Supreme Court authority and the law of our circuit. There is a substantial and significant difference between consent and constitutional waiver of counsel, especially given Vines's specific limitations. The district court placed the wrong emphasis on the communication of constitutional rights to an Hispanic man in his first encounter with our legal system: the importance for waiver purposes was not on what Shapiro told Vines concerning his absence and his Sixth Amendment rights, but on what Vines understood, to be determined by the judge's questioning him. This responsibility of determining if the waiver of counsel was knowing, intelligent and voluntary is placed on the trial judge, not on the defendant's counsel. See Johnson, 304 U.S. at 464, 58 S. Ct. at 1023; Ford, 526 F.2d at 922. The district judge failed to protect Vines's Sixth Amendment rights by not determining whether his waiver of counsel was knowing, intelligent and voluntary.¹⁰ 

The district judge's failure to make a complete record relative to waiver of counsel was compounded by the lack of review of this issue in the district court. Counsel on both sides requested a hearing. Without a hearing or any constitutional analysis, the magistrate judge simply concluded that Vines's one-word answer was sufficient waiver of counsel.¹¹ 

Significantly, Vines filed timely objections to the magistrate judge's report and recommendation. He contended that he did not knowingly waive his Sixth Amendment right to have his counsel present at trial.¹²  The district judge did not review independently Vines's timely objections to the magistrate judges's report and recommendation. Instead, the judge adopted the reasons of the magistrate judge and denied Vines's section 2255 petition.

"Whenever any party files a timely and specific objection to a finding of fact by a magistrate, the district court has an obligation to conduct a de novo review of the record with respect to that factual issue." LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958, 109 S. Ct. 397, 102 L. Ed. 2d 386 (1988). We must be satisfied that the district judge has not merely reviewed the magistrate judge's report, but, pursuant to his statutory, nondelegable responsibility, has arrived at an independent conclusion concerning the portions to which objections have been made. Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir. 1992); see 28 U.S.C. § 636(b) (1) (When a party timely has filed written objections to a magistrate judge's report, " [a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." (emphasis added)). The terse, one-sentence final judgment in this case gives us no indication that the district judge considered de novo Vines's objection to the magistrate judge's summary conclusion that Vines's waiver of counsel was knowing and voluntary, the principal basis of this appeal.

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. With the majority's decisional analysis, Vines's Sixth Amendment right to counsel was not waived or reviewed constitutionally in the district court, and this potential constitutional violation is ignored by our court.

The majority takes an innovative approach in this case. Using a creative, process-of-elimination rationale, it concludes that the temporary absence of Vines's counsel during trial was "harmless error." I find the majority's analysis to be flawed and constitutionally untenable. Moreover, it sets a dangerous precedent that finds no direct support in Sixth Amendment jurisprudence.

The majority admits that Strickland and ineffective assistance of counsel analysis "assume [ ] the presence of counsel and [are] therefore inapplicable in the absence of counsel context. Strickland is therefore inapplicable in this case." Majority Op. at 1127. I agree with the majority's ostensible conclusion.¹³  The majority, however, does not appear to mean what it says.

The majority prefaces its analysis by citing the standard of review from an ineffective assistance of counsel case, Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir. 1989), cert. denied, 497 U.S. 1032, 110 S. Ct. 3297, 111 L. Ed. 2d 805 (1990). Majority Op. at 1127. It then moves from its quotation of the core, Sixth Amendment right to counsel to quote the derivative, Court-created right to "effective" assistance of counsel. Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970)); see Golden v. Newsome, 755 F.2d 1478, 1482 (11th Cir. 1985) (the right to effective assistance of counsel is separate from, but related to the right to be represented by counsel). If the majority is convinced that this is not an ineffective assistance of counsel case, then why does it discuss the right to effective assistance of counsel and set forth the requirements for establishing an ineffectiveness claim under Strickland? Majority Op. at 1127.

The majority heavily incorporates into its analysis United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which it correctly notes is "the companion case to Strickland." Majority Op. at 1127. Cronic, however, is an ineffective assistance of counsel case, not an absence of counsel case. The counsel in Cronic was young and inexperienced, but he was never absent from his client's trial. In fact, the Supreme Court determined that his representation was adequate. It is treacherous to isolate subsidiary, general statements in an opinion and elevate them to the holding or "teach [ing]" of a case that addressed very different facts. Id.

It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed. 257 (1821).

As the majority's footnote indicates, our circuit has recognized that Cronic appropriately applies to egregious cases of counsel's ineffectiveness, not to counsel's absence. Majority Op. at 1128 n. 8 (quoting Chadwick v. Green, 740 F.2d 897, 901 (11th Cir. 1984)). For the majority to determine that Vines's claim that the temporary absence of his counsel violated his Sixth Amendment right to counsel must be determined "within the meaning of Cronic" is an inapposite comparison of an ineffective assistance of counsel case with an absence of counsel case. Id. at 1128. I conclude that the majority's repeated reliance on Cronic to analyze Vines's absence of counsel claims is misplaced, particularly when there are cases on point, as I discuss herein.

The majority states that "Cronic teaches that prejudice will be presumed if ... counsel is denied at a critical stage of trial" and that " [t]his presumption of prejudice is seemingly irrebuttable since 'the cost of litigating [its] effect ... is unjustified.' " Id. at 1127 (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at 2046). The majority thereafter announces that "we decline to give birth to a rule that the taking of evidence is necessarily a critical stage of trial." Id. at 1128. As justification for the conclusion that the taking of evidence is not a critical stage of trial proceedings, per se, the majority undertakes the type of harmless error analysis that Cronic instructs is inappropriate where counsel is denied at a critical stage of trial, to wit: "Where, as in this case, no evidence directly inculpating a defendant is presented while the 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.

Even under the majority's interpretation, the Supreme Court in Cronic would require a line to be drawn regarding the absence of counsel issue without regard to individual cases. In so doing, the Court instructs determination, without utilizing a case by case analysis, as to whether the taking of evidence is a critical stage of a criminal trial. Having made that decision, Cronic admonishes application across the board. A reading of Supreme Court precedents and the prior decisions of our court mandate that the taking of evidence is a Cronic critical stage of trial were a Cronic approach appropriate here, although I believe it not to be.

The majority goes far afield of our jurisprudence in its novel determination that trial, or portions of a trial, are not critical stages of prosecution. It announces that "we decline to give birth to a rule that the taking of evidence is necessarily a critical stage of trial." Id. The majority has confused the significance of trial, where evidence is taken based upon which guilt or innocence is determined, and pretrial critical stages.

In establishing the right to counsel at trial, the Supreme Court recognized "the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson, 304 U.S. at 462-63, 58 S. Ct. at 1022.

[A]ny person haled into court ... cannot be assured a fair trial unless counsel is provided for him.... [L]awyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796, 9 L. Ed. 2d 799 (1963). "The Sixth Amendment ... guarantees the right to the assistance of legal counsel at criminal trial." Ford, 526 F.2d at 921 (emphasis added).

The Court additionally acknowledged that the accused "requires the guiding hand of counsel at every stage of the proceedings against him." Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64, 77 L. Ed. 158 (1932).

[T]he Court has also recognized that the assistance of counsel cannot be limited to participation in a trial.... Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier, "critical" stages in the criminal justice process 'where the results might well settle the accused's fate and reduce the trial itself to a mere formality.'

Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481 (1985) (emphasis added) (quoting United States v. Wade, 388 U.S. 218, 224, 87 S. Ct. 1926, 1931, 18 L. Ed. 2d 1149 (1967)); see United States v. Mendoza-Cecelia, 963 F.2d 1467, 1473 (11th Cir.) ("The Sixth Amendment right to counsel serves 'to assure aid at trial,' and therefore attaches at the commencement of adversary judicial criminal proceedings ... [and] extends to those 'critical' pretrial proceedings in which 'the accused is confronted, just as at trial, by the procedural system....' " (emphasis added) (citations omitted)), cert. denied, --- U.S. ----, 113 S. Ct. 436, 121 L. Ed. 2d 356 (1992); United States v. Terzado-Madruga, 897 F.2d 1099, 1109 (11th Cir. 1990) ("Recognizing that the right to counsel is shaped by the need for assistance of counsel, the Court has found that the protections of the Sixth Amendment apply not only at trial but at 'earlier, "critical" stages in the criminal justice process....' " (emphasis added) (citations omitted)); see also United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 2298, 81 L. Ed. 2d 146 (1984) ("Although we have extended an accused's right to counsel to certain 'critical' pretrial 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,' in a situation where the results of the confrontation 'might well settle the accused's fate and reduce the trial itself to a mere formality.' " (emphasis added) (citations omitted)); Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 1239, 51 L. Ed. 2d 424 (1977) ("Whatever else it may mean, the right to counsel granted by the Sixth ... Amendment [ ] means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him--'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' " (citation omitted)).

Under the Sixth Amendment, the Supreme Court accordingly has required counsel at pretrial critical stages of a defendant's prosecution. See, e.g., Wade, 388 U.S. 218, 87 S. Ct. 1926 (post-indictment lineup); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (pretrial custodial interrogation); Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) (arraignment). Trial, however, is the centerpiece of the prosecutorial process for a defendant, where evidence of guilt or innocence is presented. Therefore, the right to counsel at trial is regarded as different from other pretrial critical stages. See Williams v. Alabama, 341 F.2d 777, 781 (5th Cir. 1965) ("The right to counsel upon trial is distinct from the right to counsel upon arraignment, and neither should be confused with the right to effective representation at any other 'critical stage', such as during interrogation after arrest." (emphasis added)).

The Court further has held that "the role of counsel at the preliminary hearing differs sufficiently from the role of counsel at trial in its impact upon the integrity of the factfinding process [;] ... 'the lack of counsel at a preliminary hearing involves less danger to "the integrity of the truth-determining process at trial " than the omission of counsel at the trial itself or on appeal.' " Adams v. Illinois, 405 U.S. 278, 281, 282, 283, 92 S. Ct. 916, 919, 31 L. Ed. 2d 202 (1972) (emphasis added) (citation omitted). Thus, the pretrial critical stages are designated as points in the criminal process where counsel is constitutionally required to protect and preserve a fair trial for the accused. Trial is the central and focal point of the prosecutorial continuum, the forum in which the defendant's guilt or innocence is determined. Counsel's presence throughout the trial is essential for making tactical decisions and determinations regarding the taking of evidence. See Siverson, 764 F.2d at 1216 (absent counsel is "unavailable to make any tactical judgments whatsoever").

The majority fails to cite a single case where counsel's temporary absence from actual trial, defined as the taking of evidence, is constitutional under the Sixth Amendment, and I have found none. Moreover, the Supreme Court has determined that defense counsel's lack of access to his client during an overnight trial recess is automatically grounds for reversal. Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). Indeed, our court joined the majority of other circuits in adopting a per se rule that a trial judge's preventing a defendant from consulting with his attorney during a brief trial recess violates the constitutional right to counsel and warrants a new trial. Crutchfield v. Wainwright, 803 F.2d 1103, 1110 (11th Cir. 1986) (en banc) (plurality opinion), cert. denied, 483 U.S. 1008, 107 S. Ct. 3235, 97 L. Ed. 2d 740 (1987). In contrast, we have recognized that counsel's absence, where he performs a merely "ministerial" function at sentencing involving a mandatory sentence, though a "rare and narrow circumstance," cannot cause a presumption of prejudice.¹⁴  Golden, 755 F.2d at 1483 n. 9.

Vines's case is most aligned with Green, where the temporary absence of counsel occurred during trial. In Green, the defendant's attorney was absent during an afternoon session of court in which a witness was cross-examined. The attorney had explained to the trial judge that he had to be present in another courtroom on behalf of another client being prosecuted for murder, and that he would be content with codefendant's counsel's cross-examining the witness on behalf of defendant Green. When trial resumed the next morning, the absent attorney informed the judge that he had no cross-examination for the witness.

In granting the habeas writ, the district court determined that actual or constructive denial of counsel, "as opposed to the ineffective assistance of counsel who is present," is presumptively prejudicial and "that the absence of counsel during the taking of evidence must be found, as a matter of law, to violate the constitutional right to assistance of counsel." Green, 809 F.2d at 1260. Affirming the district court, the Sixth Circuit found two circuit precedents using harmless error analysis for absence of counsel at a preliminary hearing to be "distinguishable precisely because they dealt with the denial of counsel at preliminary hearings rather than at trial." Id. at 1262 (emphasis added). The Sixth Circuit framed its appellate issue as whether "a harmless error analysis [is] appropriate to a claim of the denial of counsel at trial." Id. (emphasis added). That court determined that the Sixth Amendment is implicated when counsel is absent from the proceedings, and prejudice is presumed. While the court noted that harmless error analysis may be appropriate in critical stages, specifically preliminary hearings, and jury deliberations, it concluded: "The absence of counsel during the taking of evidence on the defendant's guilt¹⁵  is prejudic [i]al per se and justifies an automatic grant of the writ 'without opportunity for a harmless error inquiry.' "¹⁶  Id. at 1263 (citation omitted); see McKeldin v. Rose, 631 F.2d 458, 460 (6th Cir. 1980) (per curiam) (denial of counsel "at trial may never be treated as harmless error" (emphasis added)), cert. denied, 450 U.S. 969, 101 S. Ct. 1488, 67 L. Ed. 2d 619 (1981).

The Supreme Court, our court, and other circuits have used harmless error analysis for absence of counsel during pretrial critical stages, and for jury deliberations, but not for counsel's absence during actual trial. See Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S. Ct. 1999, 2004, 26 L. Ed. 2d 387 (1970) (preliminary hearing); United States v. Rapp, 871 F.2d 957, 966-67 (11th Cir.) (modified Allen charge and cases cited therein regarding responses to jury questions during deliberations), cert. denied, 493 U.S. 890, 110 S. Ct. 233, 107 L. Ed. 2d 184 (1989); Thomas v. Kemp, 796 F.2d 1322, 1326-27 (11th Cir.) (preliminary hearing), cert. denied, 479 U.S. 996, 107 S. Ct. 602, 93 L. Ed. 2d 601 (1986); United States v. Guida, 792 F.2d 1087, 1094 (11th Cir. 1986) (per curiam) (judicial response to jury request during deliberations); Siverson, 764 F.2d at 1218-20 (jury deliberations and return of the verdict); McKeldin, 631 F.2d at 460-61 (preliminary hearing); United States v. Calabro, 467 F.2d 973, 988-89 (2d Cir. 1972) (portion of jury deliberations and return of verdict), cert. denied, 410 U.S. 926, 93 S. Ct. 1357, 35 L. Ed. 2d 587, and cert. denied, 410 U.S. 926, 93 S. Ct. 1358, 35 L. Ed. 2d 587 (1973); Martin v. United States, 182 F.2d 225, 227 (5th Cir.) (return of verdict), cert. denied, 340 U.S. 892, 71 S. Ct. 200, 95 L. Ed. 647 (1950). These pretrial critical stages, jury deliberations, and returns of verdicts, unlike the actual trial, do not implicate the inculpatory or exculpatory evidence taken at trial.

The majority proclaims that " [i]t would be incongruous to hold that the absence of counsel while a jury is being instructed should be subject to harmless-error analysis but that the absence of counsel during the taking of non-inculpatory testimony is not susceptible to harmless-error analysis." Majority Op. at 1128-29. I see quite a distinction. Jury instructions occur after all of the evidence has been taken during the trial. Further, any objections or participation in the jury instructions on the part of counsel occurs during the charge conference. Judges alone instruct juries.

Testimony, inculpatory or exculpatory, occurs during the actual trial.¹⁷  I find no precedent whatsoever for excusing counsel's absence during trial without constitutional waiver. The only authority with which the majority supports its unique theory of excusable absences of criminal defense counsel during actual trial is dicta. Even this dicta has not denominated specifically when in the course of the trial these excused absences might be. We do know that the Supreme Court and our en banc court have found that counsel's unavailability during trial recesses is a Sixth Amendment violation. Unlike the majority, I am reluctant to find defense counsel's temporary absence during the taking of any evidence during trial excusable or harmless and to be the first federal court to do so. This truly is an unprecedented decision.

In summary, I believe that the majority has transferred the Court's creation of pretrial critical stages of a criminal prosecution to the trial itself. This is particularly illogical since the pretrial critical stages were instituted to protect a defendant's constitutional rights for trial. To the extent that the majority has attempted to show that the trial itself can be sectored into critical and noncritical segments, I am unconvinced by its dicta support.¹⁸  Thus, I conclude that deprivation of counsel during actual trial is per se prejudicial, unavailable for any type of harmless error analysis, and constitutes reversible error unless there has been a proper waiver of counsel, as discussed above.

The majority apparently finds it significant that "Vines was not completely denied counsel," but that his "counsel was temporarily absent during a portion of the actual trial." Majority Op. at 1128. As I have discussed, I find no definitive authority whatsoever for excusing the absence of defense counsel during actual trial and certainly not during the government's case-in-chief. Additionally, using Gideon and Cronic,¹⁹  the Seventh Circuit has addressed whether deprivation of the right to counsel means total absence or temporary absence. Siverson, 764 F.2d at 1216.

The Seventh Circuit observed that complete denial of counsel "might seem to embrace only those cases in which a defendant is without counsel throughout all the stages of the trial." Id. Under Cronic, however, the court found such a restricted interpretation to be negated: " 'The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.' " Id. (emphasis added) (quoting Cronic, 466 U.S. at 659, 104 S. Ct. at 2047). The Seventh Circuit noted the Cronic Court's emphasis on prior Court decisions that " '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.' " Id. (quoting Cronic, 466 U.S. at 659 n. 25, 104 S. Ct. at 2047 n. 25). Cronic concerned actual trial, or the taking of evidence on the defendant's guilt, as opposed to pretrial critical stages or jury instructions or deliberations. Thus, Cronic does not limit denial of counsel to complete deprivation throughout all stages of trial.

In view of the Supreme Court's clear directives regarding a criminal defendant's right to counsel, the majority's most interesting twist in its Sixth Amendment analysis is its contorted conclusion that the temporary absence of Vines's counsel was not a structural defect. The Supreme Court announced that the Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967), "harmless beyond a reasonable doubt" review standard is inapplicable for habeas or collateral review by federal courts. Brecht v. Abrahamson, --- U.S. ----, ----, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993).²⁰  The Court held that the harmless error standard of Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946), whether the trial error " 'had substantial and injurious effect or influence in determining the jury's verdict,' " is the proper review standard for federal courts in habeas cases.²¹  Brecht, --- U.S. at ----, 113 S. Ct. at 1714, 1722 (quoting Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253); see Cumbie v. Singletary, 991 F.2d 715, 724 (11th Cir.) (recognizing the new Brecht-Kotteakos standard for habeas review of trial errors), cert. denied, --- U.S. ----, 114 S. Ct. 650, 126 L. Ed. 2d 608 (1993); accord Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993); Vanderbilt v. Collins, 994 F.2d 189, 198-99 (5th Cir. 1993); Henry v. Estelle, 993 F.2d 1423, 1426 (9th Cir. 1993).

The Brecht Court explains the distinction between trial errors, to which the Brecht-Kotteakos habeas standard applies, and structural defects, which are ineligible for any type of harmless error analysis:

Trial error "occur [s] during the presentation of the case to the jury," and is amenable to harmless-error analysis because it "may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." At the other end of the spectrum of constitutional errors lie "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards." The existence of such defects--deprivation of the right to counsel, for example--requires automatic reversal of the conviction because they infect the entire trial process. Since our landmark decision in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), we have applied the harmless-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type.

Brecht, --- U.S. at ----, 113 S. Ct. at 1717 (emphasis added) (citations and footnote omitted).

Trial error, which occurs during presentation of the case to the jury, implicitly implicates ineffective assistance of counsel, necessitating the presence of counsel. This premise is emphasized by the determination of trial error: whether evidence proffered by counsel and quantitatively assessed in context with other admitted evidence was harmless. Absence of counsel is not evidence or trial error that can be quantitatively evaluated; it is a fundamental, constitutional deprivation or structural defect.²² 

Stating that the Court had "identified the precise contours" of the Brecht-Kotteakos habeas review standard, our court detailed its understanding of the Brecht "trial error"-"structural defect" dichotomy:

The threshold issue in all harmless-error inquiries is whether the violation in question amounts to "trial error" or a "structural defect." Structural defects are not susceptible to harmless-error analysis; trial errors are. Trial error "occur [s] during the presentation of the case to the jury, and ... may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless." Structural defects, by contrast, compromise the entire trial process; they involve deprivations of constitutional protections so basic that in their absence no criminal trial can be deemed reliable, nor any punishment fundamentally fair. Examples of trial error include the admission of an involuntary confession, and the improper use at trial of a defendant's silence after receiving Miranda warnings. Typical structural errors are the total deprivation of the right to counsel at trial and the unlawful exclusion of members of the defendant's race from the grand jury.

Duest v. Singletary, 997 F.2d 1336, 1338 & n. 3 (11th Cir. 1993) (per curiam) (emphasis added) (citations omitted), cert. denied, --- U.S. ----, 114 S. Ct. 1107, 127 L. Ed. 2d 418, and cert. denied, --- U.S. ----, 114 S. Ct. 1126, 127 L. Ed. 2d 434 (1994).

Both the Supreme Court and our court have used deprivation of the right to counsel as examples of structural defects unavailable for harmless error analysis. Additionally, in Crutchfield, our en banc court stated that a previous panel "did not intend to suggest [in dicta ] that a harmless error inquiry would always be required after finding a violation of the defendant's right to assistance of counsel"; some constitutional violations require a new trial "regardless of the standard employed." 803 F.2d at 1107. Any type of harmless-error analysis, including the Brecht-Kotteakos standard, is not applicable to a structural defect such as deprivation of the right to counsel. See Holloway v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 1181, 55 L. Ed. 2d 426 (1978) (" [T]his Court has concluded that the assistance of counsel is among those 'constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' " (emphasis added) (quoting Chapman, 386 U.S. at 23, 87 S. Ct. at 827-28)).

Vines contends that he was denied his right to counsel because of an invalid waiver of counsel and, thus, presents a fundamental, constitutional violation, or a structural defect in his trial. I conclude that Vines's deprivation of counsel during trial is prejudicial per se, is a Brecht "structural defect" unavailable for any type of harmless error analysis, and reversible error unless there was an knowing, intelligent and voluntary waiver of counsel. Based on the record before us, it does not appear that such a waiver was obtained. An evidentiary hearing by the district court, however, should establish conclusively the facts surrounding the putative waiver.

The paramount constitutional concern, "structural defect," and the reason that I would remand this case is for determination of a possible, albeit likely, violation of the Sixth Amendment right to counsel, manifestly implicating waiver of counsel analysis. With ingenuity, the majority has attempted to avoid the waiver issue. I find no authority for treating this "structural defect" of potential denial of the right to counsel at trial under any type of harmless error analysis.

Despite the verdict on conspiracy, Vines was convicted on the distribution charge and his participation in the cocaine smuggling operation was the apparent reason for his conviction. Since the present record shows that the trial judge did not obtain a constitutionally permissible waiver of the right to counsel, we should remand for a hearing on whether Vines's waiver of counsel was knowing, intelligent and voluntary. Constitutional waiver of the Sixth Amendment right to counsel is the issue in this appeal. Because the majority disagrees and pursues a constitutionally untenable tangent, I am compelled to dissent.