United States v. William Cordova

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2015 Decided November 24, 2015

No. 11-3034

UNITED STATES OF AMERICA,

APPELLEE

v.

WILLIAM CORDOVA, ALSO KNOWN AS MARIO, ALSO KNOWN AS

CENTINELLA,

APPELLANT

Consolidated with 11-3043, 11-3044

Appeals from the United States District Court

for the District of Columbia

(No. 1:08-cr-00167-1)

(No. 1:08-cr-00167-2)

(No. 1:08-cr-00167-4)

Robert S. Becker, Anthony D. Martin, and Mary E. Davis,

all appointed by the court, argued the causes and filed the

joint briefs for Appellants. Sherlock V. Grigsby entered an

appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the

cause for Appellee. With her on the brief were Ronald C.

Machen Jr., U.S. Attorney at the time the brief was filed, and

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Elizabeth Trosman, Elizabeth H. Danello, Gilberto Guerrero,

Jr., and Nihar Ranjan Mohanty, Assistant U.S. Attorneys.

Before: TATEL, MILLETT, and WILKINS, Circuit Judges.

PER CURIAM: William Cordova, Jose Gutierrez, and

Melvin Sorto appeal their convictions for conspiracy, violent

crimes in aid of racketeering, murder, assault, and federal and

District of Columbia weapons offenses. They raise eight

claims, four of which we address here; the others we address

in a judgment issued contemporaneously with this opinion.

Finding none of the challenges examined herein meritorious,

we affirm as to these issues.

I.

Cordova, Gutierrez, and Sorto (collectively “Appellants”)

belong to Mara Salvatrucha, an international criminal gang

also known as MS-13. All three men are originally from El

Salvador. When Cordova and Gutierrez arrived in the District

of Columbia, they moved in with Misael Esquina-Flores and

his parents, Feliciana Esquina-Flores and Tomas Esquina,

whom they had known in El Salvador. Local MS-13

members treated Cordova and Gutierrez deferentially because

they came from El Salvador. Believing that the local gang

presence was weak, Cordova and Gutierrez actively

encouraged members to commit more violent crimes to

improve MS-13’s status in the local gang hierarchy.

On the evening of July 30, 2006, Cordova and Gutierrez

pulled up next to another car, announced to the three men

inside that they were MS-13 members, ordered the men not to

move, and then opened fire, injuring those inside. None of

the victims died.

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On April 22, 2007, Cordova and Gutierrez struck again,

this time joined by Sorto. In retaliation for an attack on MS-

13 by members of a rival gang, the three men trailed the rival

gang members back to their home turf. They then opened fire

on the group, killing Edwin Ventura and severely wounding

Nelson Maldonado.

Later in 2007, Cordova and Gutierrez shot Feliciana

Esquina-Flores while she was waiting for a bus. Although

Feliciana survived the shooting, she is now blind.

Based on these three armed assaults, the government

charged Appellants with conspiracy, violent crimes in aid of

racketeering, murder, assault, and federal and District of

Columbia weapons offenses. A jury convicted Appellants on

all counts.

II.

Cordova, Gutierrez, and Sorto argue that court-imposed

restrictions limiting their personal access to certain discovery

documents deprived them of their Sixth Amendment rights to

effective representation and to assist in their defense.

Because they suffered no plausible prejudice, we reject the

argument.

A.

At a pretrial conference, the District Court ordered the

government to disclose to Appellants every Thursday any

prior statements of witnesses who would be called to testify

the following week. Those prior statements are commonly

referred to as “Jencks Act materials,” 18 U.S.C. § 3500. The

District Court’s order was more favorable to Appellants in

that regard than the Jencks Act’s requirement of disclosure

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after a government witness testifies on direct examination, id.

§ 3500(b); see also FED. R. CRIM. P. 26.2.

The District Court subsequently issued a protective order

directing that Appellants could only review the Jencks Act

materials in the physical presence of counsel or, as later

clarified, defense paralegals or investigators. The order

forbade Appellants’ possession of the materials or copies of

them. For some unknown reason, the record contains nothing

at all about the entry of this protective order. There is no

protective order in the record, no notice of its entry on the

docket, no trace of an in-court, on-the-record discussion

concerning the order’s entry, and no written or transcribed

explanation of the bases for the judge’s decision to adopt the

order. All that the record and briefing indicate is that there

was such a protective order and that all parties were aware of

its terms. None of the parties had any explanation for why the

protective order and all material surrounding its entry are

missing from the record.

Midway through the second week of trial, counsel for

Gutierrez asked the court to reconsider the protective order.

Gutierrez, whose English was limited, sought to “have the

Jencks [materials] so that he could study it so that [meetings

with counsel] would go a lot quicker.” Trial Tr. 3 (Nov. 3,

2010, Afternoon Session). His attorney explained that,

“instead of [counsel] translating the documents, [Gutierrez]

would have had a chance to review them and think about

them, and make our meeting[s] shorter and also more

productive.” Id.

The government opposed the request, citing concerns

about security and the safety of witnesses involved in this

prosecution of alleged MS-13 gang members. The

government insisted that, “for those men to have that [Jencks]

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information back at the D.C. jail, floating around, free rein,

from inmate to inmate, is a disaster.” Id. at 62.

Gutierrez responded that the protective order could not

rest upon alleged concerns about the identity of witnesses

because that information was already known to Appellants

and could easily be shared with others regardless of any

restrictions on their access to the Jencks Act materials. The

requested modification, Gutierrez’s counsel emphasized, was

only to “get a copy when he leaves here in the evening of the

Jencks material” for upcoming witnesses “so that he could

review those, and . . . we could discuss them.” Id. at 62-63.

The District Court denied Gutierrez’s request “for the

reasons previously articulated” – reasons that, alas, are not

preserved anywhere in the record. Id. at 63.

The next day, after learning that a defense investigator

had previously and mistakenly left some Jencks Act materials

with Sorto at the jail and that Sorto had carried the documents

“back and forth” to trial, id. at 65, the District Court instructed

the Marshals not to permit Appellants to take any papers to or

from the court at any time. Counsel then expressed concern

that this new restriction would prevent Appellants from being

able to keep and review their own notes from the trial or, once

back at the jail, to write down thoughts or questions to bring

to counsel the following day. That led to an in camera

meeting between the District Court, counsel, and the Marshals

Service, during which the parties agreed that:

At the end of each court date, the counsel for the

defendants will collect all papers of whatever kind

that may have been either brought to court or used

between counsel and their client, and keep it in their

possession – counsel’s possession – overnight. With

regard to returning to court the next day, the

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defendants will be permitted, if they wish, to make

notations or jot down their thoughts on paper that

they happen to have access to at the prison for the

purposes of follow-up discussions with their counsel

when they return to court whenever the next day the

court is in session.

Trial Tr. 78-79 (Nov. 4, 2010, Afternoon Session). The

District Court reiterated that Appellants would not be

permitted to “leave the court with anything at the end of the

day” and that “under no circumstances shall there be any

additional copies of the discovery that are presented to the

defense that are made for working purpose or for anyone else

to see, nor under any circumstances are [defense paralegals,

investigators, and associates] to provide a copy to the

defendants to keep and take with them back to the jail.” Id. at

79-80.

B.

Under the Sixth Amendment, criminal defendants have a

constitutional right to “be confronted with the witnesses

against [them], . . . and to have the assistance of counsel for

[their] defense.” U.S. CONST. amend. VI. Appellants assert

that the protective order’s restrictions on their access to

Jencks Act materials violated their Sixth Amendment rights

by hampering counsel’s ability to mount, and Appellants’

ability to participate in, an effective defense against the

government’s witnesses. More specifically, Appellants argue

that requiring defense team members to superintend their

review of discovery materials pressured the defense into

either (1) devoting time to sitting with Appellants as they

reviewed papers rather than dedicating that time to other trial

preparations, or (2) cabining the time Appellants had to

review the papers. Either way, Appellants argue, the order

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deprived counsel of the full benefit of Appellants’ individual

input on the Jencks Act materials, which could have

contributed important contextual information and

impeachment evidence. Appellants also contend that, had

they been afforded greater access to the Jencks Act materials,

they would have been able to assist their attorneys in

identifying potential credibility issues and new topics for

investigation.

The Federal Rules of Criminal Procedure give district

courts the discretion to enter protective orders (subject always

to the Sixth Amendment’s limitations). “At any time the

court may, for good cause, deny, restrict, or defer discovery or

inspection, or grant other appropriate relief.” FED. R. CRIM.

P. 16(d). Moreover, a “trial court can and should, where

appropriate, place a defendant and his counsel under

enforceable orders against unwarranted disclosure of the

materials which they may be entitled to inspect.” Alderman v.

United States, 394 U.S. 165, 185 (1969). The burden of

showing “good cause” is on the party seeking the order, and

“among the considerations to be taken into account by the

court will be the safety of witnesses and others, a particular

danger of perjury or witness intimidation, [and] the protection

of information vital to national security[.]” FED. R. CRIM. P.

16(d) Advisory Committee’s Note to 1966 Amendment to

Former Subdivision (e); see also 2 CHARLES ALAN WRIGHT &

PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE

§ 262 (4th ed. 2009).

We ordinarily review a district court’s balancing of those

factors in issuing a protective order for an abuse of discretion.

See United States v. Mejia, 448 F.3d 436, 456 (D.C. Cir.

2006); cf. United States v. Celis, 608 F.3d 818, 829-40 (D.C.

Cir. 2010) (no Sixth Amendment violation where “[t]he

protective order and its management by the district court

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reflect an appropriate balancing of interests in the relevant

case-specific context”). But here, the complete dearth of

information in the record regarding the issuance of the

protective order confounds that effort. There is no visible

exercise of discretion or balancing of factors by the District

Court for us to review. Cf. United States v. Williams, 951

F.2d 1287, 1290 (D.C. Cir. 1991) (“The purpose of an appeal

is to review the judgment of the district court, a function we

cannot properly perform when we are left to guess at what it

is we are reviewing.”).

Likewise, in reviewing Appellants’ challenge to the

protective order’s limitations on their access to the Jencks Act

materials, we ordinarily would apply harmless error review if

Appellants had preserved an objection to the order below and

plain error review if they had not. However, the complete

absence of any record of the order’s entry – and thus

necessarily of any objections to it – upends that inquiry. It

would seem less than fair to hold Appellants’ feet to the fire

for not documenting their prior objections to an

undocumented order entered for undocumented reasons.

No matter. Even assuming that entry of the protective

order was an abuse of discretion, there must be some material

prejudice to Appellants to establish either harmless or plain

error. United States v. Olano, 507 U.S. 725, 732 (1993) (to

establish plain error, defendants must show, inter alia, that the

error affected their “substantial rights”); United States v.

Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993) (“[B]oth harmless

error and plain error review require us to determine whether

the error was prejudicial.”); FED. R. CRIM. P. 52(a) & (b)

(same for both harmless error and plain error). The

government has demonstrated beyond a reasonable doubt that

there was no such prejudice here.

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To begin with, even though Appellants’ individual use

and access were subject to conditions, the effects of those

limitations were counterbalanced by the District Court’s

decision to afford them four to eight days’ advance receipt of

the materials when the Sixth Amendment and Jencks Act only

require disclosure after the witness has testified. See 18

U.S.C. § 3500; Palermo v. United States, 360 U.S. 343, 353

n.11 (1959) (“The statute as interpreted does not reach any

constitutional barrier.”); see also Scales v. United States, 367

U.S. 203, 257-58 (1961) (“That the procedure set forth in the

[Jencks Act] statute does not violate the Constitution . . . was

assumed by us in Palermo[.]”); United States v. Stanfield, 360

F.3d 1346, 1356-58 (D.C. Cir. 2004) (noting that “the time

allotted for review of Jencks material is often relatively brief,”

and finding no abuse of discretion where district court gave

defense counsel only nine minutes to review “a very thick

stack of papers” after witness’s direct testimony). The

District Court, in other words, built in a window of time that

ameliorated the practical impact of the access conditions.

Moreover, defense counsel had full and unfettered access

to the Jencks materials at all relevant times, and the protective

order did not otherwise limit their ability to discuss the

materials with Appellants or to obtain their input.

The proof that the District Court’s balance did not

prejudice Appellants is in the pudding. The District Court

invited Appellants to ask for extra time or a continuance if

needed to review and investigate the Jencks Act materials.

See Pretrial Conference Tr. 46-47 (October 14, 2010) (after

counsel for Cordova represented that he would “be moving

for a break in the trial” if a “real difficulty in investigating”

arose, District Court said: “That’s fine. And you will get it”);

id. at 47 (District Court indicated that if the defense “need[s]

time to explore it, we will suspend the trial”); id. at 48

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(District Court assured defense counsel, “I am not going to let

you be sandbagged”). The record does not indicate that any

Appellant ever expressed a need for that additional time. Nor

– as the government points out – in all the intervening time,

have Appellants identified a single concrete instance in which

their cross-examination or any other aspect of their defense

would have changed if they had been given unconditional

access to the Jencks Act materials. Cf. United States v. Emor,

573 F.3d 778, 785-86 (D.C. Cir. 2009) (any error in

government’s failure to produce potential Jencks Act material

was harmless because defendant failed to show disclosure

would have affected the trial’s outcome); Celis, 608 F.3d at

839-40 (no error in trial court’s refusal to grant defendant

continuances to review Jencks Act materials where the court

adjusted the trial schedule to afford the defense additional

time, defendant did not identify what additional information

she hoped to uncover or how it would have affected the result

at trial, and counsel vigorously and effectively cross-

examined the witness in question). The record thus forecloses

any colorable claim of actual prejudice, and that is fatal to

Appellants’ Sixth Amendment claim.

III.

Cordova, Gutierrez, and Sorto argue that the trial judge

erred when he denied Gutierrez’s motion to recuse himself in

response to an allegedly threatening letter.

A.

Prior to trial, in a search conducted pursuant to a separate

investigation, the government found a letter Gutierrez had

written to an acquaintance named Liliana. The letter asked

Liliana to “help me with the Lady of Sivar to silence everyone

who is against me.” Opp. to Def.’s Recusal Mo. 3. The letter

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then listed the judge, the prosecutors, potential witnesses, and

Gutierrez’s codefendants in this case.

Concerned that the letter could constitute a threat, the

government informed the District Court about the letter’s

existence and its plan to investigate further. After reviewing

the letter, the government’s MS-13 expert in El Salvador

opined that the letter’s reference to the “Lady of Sivar” could

be referring to “a shot caller or a program runner from San

Salvador” who would have the authority to order the named

individuals killed. Id. at 4. The government also located

Liliana, who interpreted the letter to mean that Gutierrez

wanted her to send the names to a “witch doctor in El

Salvador who would use magic to determine if one of the

names listed was ‘snitching’ on Gutierrez.” Id. Unable to

afford the witch doctor’s fee, however, Liliana never followed

up.

Gutierrez moved for the trial judge’s recusal on the basis

of the letter. The judge denied the motion, explaining that

given Liliana’s statement and the fact that Gutierrez had

written the letter “well over a year ago,” he had “no basis to

think whatsoever that any of these defendants [were] . . .

intending or trying in any way to be harmful to this Court or

anyone else.” Pretrial Conf. Tr. 50 (Oct. 14, 2010); see also

Trial Tr. 17-18 (Oct. 18, 2010). Therefore, the judge did not

“believe it would affect my conducting of this trial and ruling

on evidence and ruling on Motions in any way.” Pretrial

Conf. Tr. 50 (Oct. 14, 2010). He also rejected any additional

security for himself, his family, or the trial.

When the government later sought to introduce the letter

as evidence of Gutierrez’s consciousness of guilt, the judge

refused to admit it on the ground that it was substantially

more prejudicial than probative under Federal Rule of

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Evidence 403’s balancing test. He reasoned that the “total

lack of clarity as to what exactly” Gutierrez’s intent had been

in writing the letter and the consequent “interpretation by

experts” would only confuse the jury. Trial Tr. 17 (Nov. 17,

2010, Morning Session).

B.

The recusal statute, 28 U.S.C. § 455(a), requires that a

judge “disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” We review a

district court’s denial of a motion to recuse for abuse of

discretion, “appl[ying] an ‘objective’ standard: Recusal is

required when ‘a reasonable and informed observer would

question the judge’s impartiality.’” S.E.C. v. Loving Spirit

Found. Inc., 392 F.3d 486, 493 (D.C. Cir. 2004) (quoting

United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir.

2001) (en banc) (per curiam)). This standard requires that we

take the perspective of a fully informed third-party observer

who “understand[s] all the relevant facts” and has “examined

the record and the law.” United States v. Holland, 519 F.3d

909, 914 (9th Cir. 2008) (internal quotation marks omitted)

(alteration in original).

This Circuit has never decided a recusal claim based on

an alleged threat against the trial judge. But other circuits

have, and they recognize that even a legitimate threat does not

necessarily require recusal. In re Basciano, 542 F.3d 950,

956 (2d Cir. 2008) (“Although a plot or threat, real or feigned,

may create a situation in which a judge must recuse himself,

recusal is not ordinarily or routinely required. Even where a

threat is serious . . . a judge may appropriately decline to

recuse himself, at least in some circumstances.” (internal

citations omitted)); United States v. Gamboa, 439 F.3d 796,

817 (8th Cir. 2006), abrogated on other grounds by United

13

States v. O’Brien, 560 U.S. 218 (2010) (“While a defendant’s

threat against a judge may in some cases raise a sufficient

question concerning bias on the part of that judge, recusal is

not automatic on the mere basis of the judge’s knowledge of

the threat.”); United States v. Cooley, 1 F.3d 985, 993-94

(10th Cir. 1993) (noting that “threats or other attempts to

intimidate the judge” “will not ordinarily satisfy the

requirements for disqualification under § 455(a)”). Rather,

the trial judge “must evaluate the threat itself to determine

how much risk there is that it may be carried out and how

much harm there would be if it were” to determine if the

threat would cause a reasonable observer to question the

judge’s impartiality. Holland, 519 F.3d at 914. “If it is a

close case, the balance tips in favor of recusal.” Id. at 912.

Our sister circuits have identified several helpful factors

to determine whether the trial judge should have recused

himself. The Ninth Circuit listed three in United States v.

Holland: (1) “[t]he defendant’s capacity to carry out the

threat,” including whether the defendant has taken “concrete

steps” or has accomplices; (2) “[t]he defendant’s demeanor

and the context of the threat,” including whether the

defendant was “serious in carrying out the threat”; and (3)

whether the “perceived purpose of the threat” was to “force

recusal and manipulate the judicial system.” Id. at 914-15.

Under the third factor, receipt of a threat from an

“extrajudicial source” decreases the risk that the defendant is

attempting to manipulate the process and accordingly “has a

higher potential for generating a situation where the judge’s

impartiality might reasonably be questioned.” United States

v. Greenspan, 26 F.3d 1001, 1006-07 (10th Cir. 1994) (citing

Liteky v. United States, 510 U.S. 540 (1994)). The Second

and Tenth Circuits have identified a fourth factor: whether the

threat resulted in any conduct by the court other than matter-

of-course judicial rulings that could be viewed as prejudicial

14

toward the defendant. See id. (reasoning that the district

court’s decision to accelerate sentencing and its refusal to

grant a continuance of the sentencing hearing “could have

contributed to an appearance that the trial court was

prejudiced against Greenspan” after receiving a death threat,

as such measures made it “obvious[] [that the judge] took the

threat very seriously”); Basciano, 542 F.3d at 957 (finding no

error in refusal to recuse in part because the court did nothing,

other than ruling against the defendant, that would “reveal

partiality”). Underlying several of these factors is an

understanding that the judge’s subjective response to an

alleged threat is relevant to our determination of whether an

independent observer would expect the threat to impact the

court’s rulings. See Greenspan, 26 F.3d at 1006-07.

Here, Appellants argue that the judge’s refusal to recuse

“violated the spirit, if not the requirements of [Section]

455(a)” because (1) he continued to enforce the protective

order, which implied that he believed Appellants were

dangerous, despite his conclusion that there was no active

threat against him and (2) the government continued to argue

that the letter was threatening when it sought to introduce the

letter as evidence of Gutierrez’s consciousness of guilt.

Appellants’ Br. 27-32. Applying the factors identified by our

sister circuits, we reject these arguments.

It is true that Gutierrez had the “capacity to carry out” a

threat, as he was a respected member of a violent international

criminal organization with a broad geographic reach. See

Holland, 519 F.3d at 914-15. And because the government

discovered the letter during an unrelated investigation, it is

highly unlikely that Gutierrez intended just to delay or disrupt

the proceedings in this case or force the judge to recuse

himself. See Greenspan, 26 F.3d at 1006-07. Contrary to

Appellants’ contention, however, the judge’s rulings on the

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protective order suggest no bias. The government introduced

ample evidence regarding witness safety to support the order,

including witnesses’ testimony that MS-13 members would

kill them for testifying, the seizure from one Appellant’s cell

of jail records containing witnesses’ names and locations

within the jail, and Cordova’s recorded telephone call

threatening witnesses. See Basciano, 542 F.3d at 957; see

also Liteky, 510 U.S. at 556 (Judicial conduct “consist[ing] of

judicial rulings, routine trial administration efforts, and

ordinary admonishments . . . to counsel and to witnesses” that

“neither (1) rel[y] upon knowledge acquired outside such

proceedings nor (2) display[] deep-seated and unequivocal

antagonism that would render fair judgment impossible”

cannot form the basis for recusal.). This evidence stood in

contrast to the stale letter – more than a year old – and

nothing in the record indicates that Gutierrez or anyone else

took affirmative steps toward carrying out any threat. See

Holland, 519 F.3d at 916. Further, although the government

argued that the letter was threatening, the U.S. Marshals and

the judge credited Liliana’s statement that the letter had no

threatening purpose and the judge requested no additional

security for himself, his family, or the trial. See id. (noting

that “[t]he district court did not consider the threats or

Holland’s capacity to carry them out serious enough to refer

the incident to the FBI, nor did he request additional security

from the U.S. Marshal’s service”); cf. In re Nettles, 394 F.3d

1001 (7th Cir. 2005) (holding that recusal was required where

the defendant made an unquestionably legitimate threat to

bomb the Seventh Circuit courthouse).

The circumstances show that a reasonable and informed

observer would not perceive the letter to give rise to a

“significant risk” that the trial judge would “resolve the case

on a basis other than the merits.” Holland, 519 F.3d at 914.

16

We therefore conclude that he did not abuse his discretion in

declining to recuse himself.

IV.

Cordova, Gutierrez, and Sorto contend that the District

Court’s decision to conduct a preliminary conference on jury

instructions in chambers – outside of their presence –

amounted to a violation of their constitutional right to be

present throughout their trial, and of Federal Rule of Criminal

Procedure 43. Appellants further argue that the District

Court’s failure to create a record deprived them of effective

representation before this Court.

A.

On the morning of November 29, 2010, the District Court

held an in camera, off-the-record conference with counsel to

discuss proposed jury instructions. When proceedings

continued on the record later that afternoon, the District Court

summarized what had occurred, noting that the judge and

attorneys had met to review the latest draft of the jury

instructions “and to determine which, if any of them, required

oral argument because of differences of opinion between the

government and the defense with regard to the content of the

instructions as currently constructed.” Trial Tr. 4 (Nov. 29,

2010). The District Court reported that the “overwhelming

majority of the instructions . . . were not controversial and

didn’t require follow-up discussion on the record and

argument,” though he did acknowledge the “fairly sizable”

list of potential instructions that did warrant follow-up and

advocacy on the record, “and that’s why we’re here right

now.” Id. No objection was made to the off-the-record

nature of the proceeding at this time, and the District Court

and parties proceeded to review the disputed instructions on

the record.

17

Two years after the trial had concluded, appellate counsel

requested a hearing to reconstruct the record of the November

29 in camera conference. During this hearing, the trial court,

trial defense counsel, and the prosecution attempted to

recount exactly what had occurred during the off-the-record

conference, though the recollections were not much more

informative than the District Court’s summary immediately

following the conference. The District Court did reflect upon

the purpose for holding the instruction conference as it did,

explaining that

the Court wanted to get in an informal setting where

we could have a quick exchange back and forth, try

to determine where there would be objections and

where there wouldn’t. And where there would be

objections, then we would obviously come in to

court and they would be voiced on the record and

argued on the record; both sides could present their

arguments.

Status Conf. Tr. 29 (Feb. 6, 2013). Counsel for the

government agreed with the District Court’s recollection that

“a lot of it was boilerplate” and without objection, id. at 30,

but also noted that where there were substantive exchanges

“we came back into the courtroom and we did it all over again

so that there was no misunderstanding as to . . . what positions

either side had with respect to the . . . jury instructions,” id. at

32.

B.

Because no objection to the in camera discussion was

made – either prior to the conference taking place, or once the

proceedings resumed on the record – we examine this issue

only for plain error. See United States v. Purvis, 706 F.3d

18

520, 522 (D.C. Cir. 2013). An appellate court may exercise

its discretion to notice a forfeited error if there is (1) error, (2)

that is plain, and (3) that affects substantial rights, but only if

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

reputation of judicial proceedings. Id.; accord Johnson v.

United States, 520 U.S. 461, 466-67 (1997); see also FED. R.

CRIM. P. 52(b). Appellants have not shown plain error here.

A defendant’s constitutional right to be present during

trial proceedings, while largely rooted in the Sixth

Amendment’s Confrontation Clause, is protected by the Due

Process Clause of the Fifth Amendment in situations where

the defendant is not actually confronting a witness or

evidence against him. United States v. Gagnon, 470 U.S. 522,

526 (1985) (per curiam). A defendant has a due process right

to be present “whenever his presence has a relation,

reasonably substantial, to the fullness of his opportunity to

defend against the charge.” Snyder v. Massachusetts, 291

U.S. 97, 105-06 (1934), overruled in part on other grounds by

Malloy v. Hogan, 378 U.S. 1 (1964); accord Gagnon, 470

U.S. at 526. Indeed, this Court has recognized that “due

process clearly guarantees that the defendant be allowed to be

present ‘to the extent that a fair and just hearing would be

thwarted by his absence.’” United States v. Gordon, 829 F.2d

119, 123 (D.C. Cir. 1987) (quoting Snyder, 291 U.S. at 108);

see also Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (“[A]

defendant is guaranteed the right to be present at any stage of

the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure.”);

Gagnon, 470 U.S. at 526; Faretta v. California, 422 U.S. 806,

819 n.15 (1975) (“[A]n accused has a right to be present at all

stages of the trial where his absence might frustrate the

fairness of the proceedings.”). But, as the Supreme Court

noted in Snyder, the right to be present is guaranteed only to

the extent that a fair and just hearing would be thwarted by a

19

defendant’s absence, “and to that extent only.” Snyder, 291

U.S. at 108 (emphasis added). There is no guaranteed right to

presence “‘when presence would be useless, or the benefit but

a shadow.’” Gordon, 829 F.2d at 123 (quoting Snyder, 291

U.S. at 106-07).

The right to presence has been codified in Federal Rule

of Criminal Procedure 43. Gordon, 829 F.2d at 123; see also

United States v. Harris, 491 F.3d 440, 452 n.5 (D.C. Cir.

2007). As relevant here, Rule 43 gives a defendant a right to

be present at “every trial stage, including jury impanelment

and the return of the verdict.” FED. R. CRIM. P. 43(a)(2).

Certain exceptions, however, are identified by the Rule.

Notably, the Rule carves out an exception to the presence

requirement when “[t]he proceeding involves only a

conference or hearing on a question of law.” FED. R. CRIM. P.

43(b)(3). In such a case, the defendant need not be present.

Id.

The application of the above authority to the instant case

reveals several reasons why the District Court did not plainly

err by holding its preliminary jury instruction conference

outside the presence of Appellants.

First, there was no plain error under the Due Process

Clause. Appellants have failed to show that a fair and just

hearing was thwarted by their absence from the preliminary

jury instruction conference. See Gordon, 829 F.2d at 123.

Appellants have not pointed to any objection they would have

raised had they been present for the in-chambers conference.

Appellants have not demonstrated that their presence would

have added anything to the discussion, nor have they shown

that their presence would have had a reasonably substantial

relation to their opportunity to defend against the charges

against them.

20

Second, the preliminary jury instruction conference in

this case falls within the “conference or hearing on a question

of law” exception laid out in Rule 43(b)(3). See United States

v. Perez, 612 F.3d 879, 883 (7th Cir. 2010) (“The content of

jury instructions is a question of law, and as such the jury

instruction conference, assuming arguendo it was a stage of

trial, fell within the . . . exception for a conference or hearing

on a question of law.” (internal quotation marks omitted));

United States v. Rivera, 22 F.3d 430, 438-39 (2d Cir. 1994)

(“The content of the instructions to be given to the jury is

purely a legal matter, and a conference to discuss those

instructions is thus a conference on a question of law at which

a defendant need not be present.” (internal citation omitted));

United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir.

1987) (“We hold that a hearing outside the presence of the

jury concerning the selection of jury instructions is a

‘conference or argument upon a question of law’ . . . .”);

United States v. Graves, 669 F.2d 964, 972 (5th Cir. 1982)

(“A defendant does not have a federal constitutional or

statutory right to attend a conference between the trial court

and counsel concerned with the purely legal matter of

determining what jury instructions the trial court will issue.”);

see also United States v. Jones, 674 F.3d 88, 94 (1st Cir.

2012) (counsel’s meeting with judge to consider a response to

a jury request for re-instruction fell within the Rule 43(b)(3)

exception). As recounted by the District Court and counsel

both immediately after the hearing and two years later during

the hearing to reconstruct the record, it is clear that the

preliminary discussion of jury instructions sought only to

identify agreement or disagreement on the lengthy proposed

instructions, and thus only dealt with detailed and technical

legal questions.

Finally, Appellants have failed to show prejudice in

support of their claim that the off-the-record proceeding

21

deprived them of effective representation. Ineffective

assistance of counsel can result when the court “interferes in

certain ways with the ability of counsel to make independent

decisions about how to conduct the defense.” Strickland v.

Washington, 466 U.S. 668, 686 (1984) (citing cases). But a

violation of the right to effective representation requires a

defendant to establish prejudice. See United States v.

Gonzalez-Lopez, 548 U.S. 140, 146-47 (2006). In order to

prove prejudice, the defendant must show that there is a

“reasonable probability” – “a probability sufficient to

undermine confidence in the outcome” – “that the result of the

proceeding would have been different” absent the alleged

error. Strickland, 466 U.S. at 694. While Appellants attack

the reasoning behind the District Court’s decision to hold the

preliminary jury instruction conference off the record, they

have not demonstrated any probability that the result of the

proceeding would have been any different had the conference

been held on the record. The absence of prejudice is

particularly apparent here, where the in-chambers conference

did not involve substantive discussion about the content of

instructions, but rather involved only identifying the specific

instructions that were not agreed upon by the parties so that

substantive discussion as to those instructions could occur in

the courtroom (and in Appellants’ presence).

We nonetheless add a word of caution about conducting a

jury instruction conference of this kind off the record. As

Appellants have argued, off-the-record proceedings have the

potential of impeding the ability of the appellate court to do

its job. This case would have been much more complicated if

the attorneys and the District Court had articulated conflicting

recollections of what occurred off the record, or if Appellants

had claimed that the off-the-record discussion strayed from

simply “we object” to substantive discussion of grounds of an

objection that was not later captured on the record, or if

22

Appellants had claimed that an objection was overruled in

chambers but the ruling was not repeated in precisely the

same manner during the subsequent on-the-record proceeding.

In such a case, we would be presented with the awkward task

of resolving a factual dispute about what happened below, a

difficult exercise for this Court. “There can never be effective

appellate review if the reviewing court is not able to obtain a

clear picture of the precise nature of the alleged errors in the

court below.” Lee v. Habib, 424 F.2d 891, 897 (D.C. Cir.

1970). As the Seventh Circuit has recognized in a case

similar to this one, “[i]t is possible that this procedure could

injure the defense if it obscured the nature of the objections

made and reasons for giving the instructions.” United States

v. Murphy, 768 F.2d 1518, 1536 (7th Cir. 1985). Fortunately,

there was no violation of due process or Rule 43 in this case

because Appellants have identified no prejudice from a

conference that involved only discussions of undisputed

questions of law and for which there was no dispute about

what transpired off-the-record, but the risk that such a dispute

could arise in the future does give us pause.

V.

Cordova, Gutierrez, and Sorto assert that they are entitled

to a new trial because they were denied their right to two

attorneys under 18 U.S.C. § 3005, even after the government

filed notice that it did not intend to seek the death penalty.

We find that the District Court’s dismissal of Appellants’

second appointed attorneys was neither contrary to the statute

nor an abuse of discretion.

A.

Appellants were indicted on June 10, 2008 for, inter alia,

murder in aid of racketeering in violation of 18 U.S.C.

§ 1959(a)(1), which can be punishable by death, id. Within

23

approximately two months after indictment, each Appellant

was appointed two attorneys.

The government filed notice on February 16, 2010, that it

did not intend to seek the death penalty as to each Appellant.

At a hearing on March 18, 2010, the District Court announced

that, following the government’s notice, it had consulted with

the Federal Public Defender, who had indicated to the court

that “since it is not going to be a death penalty case, the public

is not required to pay for two lawyers for each defendant.”

Status Conf. Tr. 8 (March 18, 2010). As such, the District

Court determined that Appellants, while welcome to have a

second lawyer at their own expense, would only be appointed

one lawyer “at taxpayer expense.” Id. Defense counsel

argued in response that they believed that the status had not

changed because the government was still seeking life

sentences, the case was complex, and the second appointed

lawyer was particularly useful in this case because they had

one Spanish-speaking lawyer and one non-Spanish-speaking

lawyer for each Appellant (all of whom are native Spanish-

speakers). The District Court assured defense counsel that

translation assistance would be made available as needed, and

that, with respect to the second attorney, it was possible – but

not very likely – that he would change his mind.

On May 12, 2010, Sorto sought reconsideration of the

District Court’s decision in the form of a motion to appoint a

second defense attorney pursuant to 18 U.S.C. § 3005. The

District Court denied the request on June 24, 2010.

B.

We review questions of statutory interpretation de novo.

United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993).

The proper meaning of 18 U.S.C. § 3005 is a matter of first

impression in this Circuit. To the extent that Appellants argue

24

that, even if not obligated by statute, the District Court should

have exercised discretion to appoint a second attorney, we

review that decision for abuse of discretion. See generally

United States v. Donato, 99 F.3d 426, 429 (D.C. Cir. 1996).

“As always, we begin with the text of the statute.”

United States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir. 2014)

(citing United States v. Ron Pair Enters., Inc., 489 U.S. 235,

241 (1989); United States v. Barnes, 295 F.3d 1354, 1359

(D.C. Cir. 2002)). “Where the language is clear, that is the

end of judicial inquiry ‘in all but the most extraordinary

circumstances.’” United States v. Braxtonbrown-Smith, 278

F.3d 1348, 1352 (D.C. Cir. 2002) (quoting Estate of Cowart v.

Nicklos Drilling Co., 505 U.S. 469, 474 (1992)); see also

Caminetti v. United States, 242 U.S. 470, 485 (1917) (“It is

elementary that the meaning of a statute must, in the first

instance, be sought in the language in which the act is framed,

and if that is plain, and if the law is within the constitutional

authority of the lawmaking body which passed it, the sole

function of the courts is to enforce it according to its terms.”).

With these principles in mind, we turn to the statutory

text at issue here:

Whoever is indicted for treason or other capital

crime shall be allowed to make his full defense by

counsel; and the court before which the defendant is

to be tried, or a judge thereof, shall promptly, upon

the defendant’s request, assign 2 such counsel, of

whom at least 1 shall be learned in the law applicable

to capital cases, and who shall have free access to the

accused at all reasonable hours. In assigning counsel

under this section, the court shall consider the

recommendation of the Federal Public Defender

organization, or, if no such organization exists in the

25

district, of the Administrative Office of the United

States Courts. The defendant shall be allowed, in his

defense to make any proof that he can produce by

lawful witnesses, and shall have the like process of

the court to compel his witnesses to appear at his

trial, as is usually granted to compel witnesses to

appear on behalf of the prosecution.

18 U.S.C. § 3005.

While a plain reading of the statute supports Appellants’

position that the trigger to initiate and guarantee the right to a

second lawyer is the return of an indictment of a “capital

crime,” see United States v. Boone, 245 F.3d 352, 359-60 (4th

Cir. 2001), such a reading does not answer the question in this

case – that is, whether the statute requires the retention of the

second lawyer after the government has conclusively

determined that it will not seek the death penalty. In this

regard, the statute is silent and therefore ambiguous. See

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our

first step in interpreting a statute is to determine whether the

language at issue has a plain and unambiguous meaning with

regard to the particular dispute in the case.” (emphasis

added)); see also United States v. Wilson, 290 F.3d 347, 353

(D.C. Cir. 2002) (“In determining the ‘plainness or ambiguity

of statutory language’ we refer to ‘the language itself, the

specific context in which that language is used, and the

broader context of the statute as a whole.’” (quoting

Robinson, 519 U.S. at 341)).

To address this ambiguity, we look to the statutory

purpose. Braxtonbrown-Smith, 278 F.3d at 1352 (“Where the

language is subject to more than one interpretation and the

meaning of Congress is not apparent from the language itself,

the court may be forced to look to the general purpose of

26

Congress in enacting the statute and to its legislative history

for helpful clues.”). We “must avoid an interpretation that

undermines congressional purpose considered as a whole

when alternative interpretations consistent with the legislative

purpose are available.” Id. (citing United States v. Am.

Trucking Ass’ns, Inc., 310 U.S. 534, 543 (1940)). “[E]ven

when the plain meaning [does] not produce absurd results but

merely an unreasonable one ‘plainly at variance with the

policy of the legislation as a whole’” we must “follow[] that

purpose, rather than the literal words.” Am. Trucking Ass’ns,

310 U.S. at 543 (quoting Ozawa v. United States, 260 U.S.

178, 194 (1922)).

The language used by Congress suggests that the purpose

of the statute would be best met by applying the mandate for

two attorneys only as long as the death penalty is actually

being pursued. The statute demands that at least one of the

two appointed counsel “shall be learned in the law applicable

to capital cases.” 18 U.S.C. § 3005 (emphasis added). The

reference to “capital cases” is significant, because even

though Congress did not define the term in this section,

Congress has repeatedly used “capital case” to mean a

proceeding in which the death penalty has been imposed or a

case in which the death penalty is being or could be sought.

See, e.g., 18 U.S.C. § 3510(b) (right of victim to attend trial

even if she may appear as witness at subsequent sentencing

phase in a death penalty case); 28 U.S.C. § 2266 (special

habeas corpus procedures for cases where a death sentence

was imposed); 42 U.S.C. § 14163 (grants to states to improve

representation in cases where a death sentence may be sought

or has been imposed). The Supreme Court and lower federal

courts have historically used the term “capital case” in the

same manner. See, e.g., Wiggins v. Smith, 539 U.S. 510, 524

(2003); United States v. Parker, 103 F.2d 857, 861-62 (3rd

Cir. 1939). Congress and the courts have imposed procedural

27

safeguards in cases where the death penalty is at issue that are

distinct from the procedures required in noncapital cases, see,

e.g., O’Dell v. Netherland, 521 U.S. 151, 167 (1997); Gilmore

v. Taylor, 508 U.S. 333, 342 (1993), because “there is a

significant constitutional difference between the death penalty

and lesser punishments,” Beck v. Alabama, 447 U.S. 625, 637

(1980).

Thus, by requiring that at least one attorney be “learned

in the law applicable to capital cases,” Congress indicated that

the purpose of the second lawyer is to provide additional

support and expertise to defendants facing the possibility of

the death penalty, precisely because defending those cases

requires a separate and unique base of knowledge, training,

and experience. Thus understood, the statute reflects

Congress’s policy decision that defendants relying on

appointed counsel need even more help – and more

specialized help – when their life hangs in the balance. If the

death penalty is not on the table for a particular case, such

expertise is no longer absolutely necessary for a fair

proceeding to result. Cf. United States v. Waggoner, 339 F.3d

915, 918 (9th Cir. 2003) (reflecting that “the purpose of the

two-attorney right is to reduce the chance that an innocent

defendant would be put to death because of inadvertence or

errors in judgment of his counsel” (internal quotation marks

omitted)).

Further support for this conclusion is found in the

amendment history of the statute. The provision now found at

18 U.S.C. § 3005 was originally enacted as Section 29 of the

Crimes Act of April 30, 1790, 1 Stat. 118-19. The provision

was included in the Revised Statutes at R.S. § 1034 (1878),

and then placed in the United States Code at 18 U.S.C. § 563

(1925-26). In 1948, changes were made in phraseology, and

the statute was moved from 18 U.S.C. § 563 to 18 U.S.C.

28

§ 3005, see 62 Stat. 814. Throughout this time, no truly

substantive changes were made, and no discernable

explanatory commentary was ever provided. See Boone, 245

F.3d at 365 (Kiser, J., concurring in part and dissenting in

part) (noting “dearth” of legislative history); In re Sterling-

Suárez, 306 F.3d 1170, 1173 & n.2 (1st Cir. 2002) (stating

that the court can only speculate about changes to the

provision “[a]bsent legislative history”).

In 1994, Congress made the first substantive changes to

the statute as part of the Violent Crime Control and Law

Enforcement Act of 1994. See Pub. L. No. 103-322, § 60026,

108 Stat. 1796, 1982 (1994). It was at this time that Congress

imposed the requirement in Section 3005 that at least one

counsel “learned in the law applicable to capital cases” be

provided to defendants indicted for capital crimes. The

amendment also opted for the word “promptly” in place of the

word “immediately” as to the timing of counsel’s

appointment, and further introduced the requirement that the

court consider counsel recommendations of the Federal Public

Defender organizations or the Administrative Office of the

United States Courts. Concurrent with these changes,

Congress also enacted the Federal Death Penalty Act of the

Violent Crime Control and Law Enforcement Act of 1994.

See Pub. L. No. 103-322, § 60002, 108 Stat. at 1959 (codified

at 18 U.S.C. §§ 3591 to 3598). Among other things, the

Federal Death Penalty Act requires that the government serve

notice on a defendant charged with a death-penalty-eligible

offense indicating whether the government believes that the

death penalty is justified in that particular case. 18 U.S.C.

§ 3593(a). Such notice must be made “a reasonable time

before the trial or before acceptance by the court of a plea of

guilty.” Id. The notice must: (1) state “that the government

believes that the circumstances of the offense are such that, if

the defendant is convicted, a sentence of death is justified . . .

29

and that the government will seek the sentence of death; and

(2) set[] forth the aggravating factor or factors that the

government, if the defendant is convicted, proposes to prove

as justifying a sentence of death.” Id. The Department of

Justice has established comprehensive death penalty

procedures based on the Federal Death Penalty Act. See U.S.

DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL, § 9-10.020

(April 2014).

This notice requirement underscores the importance of

the “prompt” appointment of the second attorney in death-

penalty-eligible cases – that is, before the government makes

its determination as to whether to seek a death sentence. Even

among courts that disagree as to whether the second attorney

is required after the government announces that it will not

seek the death penalty, there is agreement that “prompt”

means promptly after indictment, and not later. This is

because the goal of the defense in this early stage of the

proceedings is to convince the Attorney General not to seek

the death penalty in the first place. See, e.g., In re Sterling

Suárez, 306 F.3d at 1173 (second attorney learned in the law

of capital punishment “is likely to be especially useful in

making and supporting arguments about mitigating and

aggravating factors, primarily made at the stage when the

Attorney General is determining whether or not to seek the

death penalty and (still later) when the jury is determining the

sentence”); Boone, 245 F.3d at 360 (“[T]he appointment of a

second lawyer helps the defendant during this preliminary

process when that investigation into relevant factors and

presentment of information to the United States Attorney

occurs. Surely, if the government decides not to seek the

death penalty, then the penalty phase is won before trial, and a

second lawyer has proven his worth.”). While the death

penalty is still on the table, there is a specific role for an

attorney “learned in the law applicable to capital cases” to

30

play in the defense, but once the Attorney General has made a

determination not to seek the death penalty, the requirement

of counsel with such specialized expertise no longer serves

that specific role.

Simply put, when we consider how federal capital

prosecutions work in practice – practices that were established

in 1994 contemporaneously with the amendment requiring at

least one lawyer to be “learned in the law applicable to capital

cases” – it is clear that the congressional purpose is best

served by reading Section 3005 to require two attorneys only

while the defendant faces the death penalty as a potential

option. Once the government has decided not to seek the

death penalty, the trial court retains the discretion to keep or

dismiss the second attorney, but it is not per se error for the

court to choose dismissal.

This conclusion is in accord with the majority of our

sister circuit courts that have considered the issue. See United

States v. Douglas, 525 F.3d 225, 237 (2d Cir. 2008) (“[O]nce

the government has formally informed the court and the

defendant of its intention not to seek the death penalty, the

matter is no longer a capital case within the meaning of

§ 3005 and that section does not require the district court to

continue the appointment of a second attorney.”); Waggoner,

339 F.3d at 917-18 (term “capital crime” did not encompass

the underlying offense when capital punishment could not be

imposed and thus government’s formal and irrevocable

renunciation of intent to seek a conviction for capital murder

justified denial of defendant’s motion for continued

representation by a second court-appointed lawyer); United

States v. Casseus, 282 F.3d 253, 256 (3d Cir. 2002) (any error

in the failure of the district court to act on the defendants’

requests to appoint death-penalty qualified counsel was

harmless where the requests were rendered moot by the

31

government’s decision not to seek the death penalty); United

States v. Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998)

(defendant was not entitled to two court-appointed lawyers

where the government had stated, on the record prior to trial,

that it would not seek the death penalty; court determined that

at that point the proceeding was transformed from a capital

case into a noncapital case); see also In re Sterling-Suárez,

306 F.3d at 1175 (“[I]n this case there are practical reasons to

treat the case as capital from indictment forward, for purposes

of appointing learned counsel, until it becomes clear that the

death penalty is no longer an option.” (second emphasis

added)). Further support for our conclusion comes from those

opinions interpreting Section 3005 in the wake of Furman v.

Georgia, 408 U.S. 238 (1972). See United States v. Dufur,

648 F.2d 512, 514-15 (9th Cir. 1980) (invalidation of death

penalty provision in 18 U.S.C. § 1111 eliminated defendant’s

right to two attorneys in prosecution for “capital crimes”);

United States v. Shepherd, 576 F.2d 719, 727-29 (7th Cir.

1978) (holding that because “there is no possibility that the

death penalty can be imposed,” this provision granting

defendants a right to two counsel in capital cases was

inapplicable); United States v. Weddell, 567 F.2d 767, 770-71

(8th Cir. 1977) (defendant accused of murder was not entitled

to appointment of second attorney where Furman precluded

imposition of death penalty and case thus lost its capital

nature); but see United States v. Watson, 496 F.2d 1125,

1127-29 (4th Cir. 1973) (offense of first-degree murder still a

“capital crime,” and thus defendant charged with such offense

had absolute statutory right to two attorneys on request,

notwithstanding that under Furman the death penalty could

not constitutionally be imposed).

The only circuit that has come to a different conclusion is

the Fourth Circuit, see Boone, 245 F.3d at 359-60; Watson,

496 F.2d at 1129, but for the reasons stated above, we

32

respectfully disagree with its conclusion that Section 3005

unambiguously mandates that the second defense attorney

must be retained after the prosecution irrevocably removes the

possibility of a death sentence. For various reasons, such as

the complexity of the issues or the amount of necessary

investigation, it may be prudent for the District Court to allow

the second lawyer to continue to assist with the

representation, but the statute does not require it. Other than

arguing that the District Court was required by statute to

retain two attorneys for each Appellant through trial – a

contention we reject – Appellants have not identified any

basis to find an abuse of discretion by the District Court in

dismissing the second appointed attorneys, and we find none.

VI.

For the foregoing reasons, we affirm the judgment of the

District Court with respect to the four claims addressed

herein.

So ordered.