Argued and Submitted, Pasadena, California: March 4,
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-00675-JAK-1. John A. Kronstadt, District Judge, Presiding.
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.
Matthew B. Larsen (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Los Angeles, California, for Defendant-Appellant.
Michael Dore (argued), Assistant United States Attorney, Violent and Organized Crime Section; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division; Andre Birotte, Jr., United States Attorney, United States Attorneys' Office, Los Angeles, California, for Plaintiff-Appellee.
Before: Jay S. Bybee, Carlos T. Bea, and Morgan Christen, Circuit Judges. Opinion by Judge Bybee.
BYBEE, Circuit Judge:
Joe Angel Reyes appeals his conviction of one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). Reyes raises two arguments on appeal. First, he contends that the district court violated his right to be present at trial by excluding him from certain side bar exchanges during jury selection. Second, he asserts that his sentence is substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
A. Jury Selection
A federal grand jury returned an indictment charging Reyes with two counts of bank robbery and two counts of attempted bank robbery in violation of 18 U.S.C. § 2113(a). The district court conducted voir dire on March 6, 2012. Reyes was present in the courtroom with his attorneys. After questioning the first twelve jurors in open court, the district court conferred with the attorneys representing Reyes and the government at side bar. The court began by asking Reyes's attorney, John Littrell, whether any jurors should be excused for cause. After the lawyers discussed which jurors should be excused, Littrell requested that Reyes himself be permitted to participate at the side bar conferences with the lawyers. The court denied the request, advising Littrell that " If you wish to confer with your client while we're here, you can do so" and explaining that " I've never had a client participate in a side bar on jury selection because I count on the lawyers that you know what you're doing to communicate with your client and get the data and convey it to me." The court then reiterated to Littrell that " If in the course of what we're discussing something comes up that you want to talk to him about at anytime, please let me know." Littrell declined to confer with Reyes at that point. At the next side bar conference, the court told defense counsel, " I know your client is not here and--you have a standing objection on that."
The district court held a total of eighteen side bar conferences with the attorneys during the course of jury selection. Consistent with the court's decision, Reyes remained at the table during each exchange rather than joining the lawyers at the bench. On four occasions, Reyes's attorneys asked for a moment to confer with Reyes, and each time the court granted the request and confirmed that they were welcome to speak with their client before proceeding.
At seventeen of the eighteen side bar conferences, the attorneys either discussed whether a juror should be excused for cause, exercised a peremptory challenge, or conversed about whether voir dire should proceed even though two of the prospective jurors had yet to return from lunch. At no point during these seventeen conferences did the attorneys or the court speak with a prospective juror or anyone else.
During one of the eighteen side bar exchanges, the court briefly questioned a prospective juror, who we will refer to as Juror H, outside of Reyes's earshot. As part of its standard line of questioning, the district court asked Juror H in open court whether any of the matters discussed " raises a question with you as to your ability to be fair and impartial." Juror H answered " Yes, I have a personal issue," and accepted the court's invitation to speak privately. The court then questioned
Juror H at the bench with the lawyers for both Reyes and the government present. Juror H informed the court that a woman with whom her son had a child had robbed nine banks about five years earlier. Juror H said " I don't know if I can be fair" because she thought the woman should have been punished more harshly than she was for robbing the banks. The court again asked Juror H whether she could fairly evaluate the case as a juror and she responded " I'm not sure" and " I can't say." Next, the court explained that everyone has been shaped by their prior experiences, and Juror H replied " That's true" and " I don't want to be unfair." The court instructed Juror H to further consider whether she could be fair and sent her back to her seat. The attorneys for both Reyes and the government recommended that Juror H's status as a juror be resolved immediately. The court then had the following exchange with Juror H in open court:
The Court: Ms. [H], we spoke at the side; and I asked you to reflect on what we talked about. Have you had enough time to do that, or do you need more time?
Juror H: I think I'm okay with the time.
The Court: What's your present thinking? Can you be fair and impartial in this case?
Juror H: It's like, what is fair?
The Court: Well, fair means that you listen to the evidence and evaluate it and you do ...