United States v. Alexander Michael Roy

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-15093

________________________

D.C. Docket No. 2:12-cr-14022-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEXANDER MICHAEL ROY,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(April 26, 2017)

ON PETITION FOR REHEARING

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,

WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and

JILL PRYOR, Circuit Judges.

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ED CARNES, Chief Judge:

Because it is a document designed to govern imperfect people, the

Constitution does not demand perfect trials and errors do not necessarily require

the reversal of a conviction. More than thirty years ago, the Supreme Court

reminded us: “As we have stressed on more than one occasion, the Constitution

entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986). Alexander Roy, who

was convicted in federal court of five sex-related crimes involving minors,

received a fair trial although not a perfect one.

The error in Roy’s trial occurred when his counsel returned a few minutes

late from a lunch break on the third day of the six-day trial. He missed only a

small part of the testimony of the 12th of 13 government witnesses. Counsel was

out of the courtroom for only seven minutes of a trial that lasted 1,884 minutes or

31.4 hours (not counting recesses and jury deliberations). That is less than one-

half of one percent of the trial time. During his absence counsel missed only 18

answers out of a total of approximately 2,745 answers that were given by

government witnesses during the trial. That is less than one percent of the total

testimony against Roy. And the little testimony that counsel had missed was

repeated in even more detail by the same witness after counsel returned to the

courtroom.

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The parties agree that it was Sixth Amendment error for inculpatory

testimony to be taken in the absence of defense counsel. Their primary

disagreement is about whether it was a type of structural error for which prejudice

is presumed, or trial error to which the harmless error rule applies. They also

disagree about whether our review is limited to plain error and about whether the

error was actually harmless.

I. The Charged Crimes

Roy was charged in a five-count indictment with sex crimes related to minor

girls. Count 1 charged him with attempted child enticement in violation of 18

U.S.C. § 2422(b), based on his efforts to arrange a sexual encounter with someone

he believed to be a 13-year-old girl in response to an internet ad posted by law

enforcement. That charge did not involve any child pornography. And no

questions about the Count 1 charge were asked during counsel’s brief absence.

None.

Counts 2–5 did involve child pornography. Each of those four counts

charged Roy with knowingly possessing “any visual depiction” of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (emphasis added).

The difference between those four counts is based on the four different electronic

devices Roy used to store his images of child pornography: his desktop computer

(Count 2); his laptop computer (Count 3); his USB thumb drive (Count 4); and

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three of his CD-ROM discs (Count 5). All that the government had to prove under

each of Counts 2–5 was that Roy knowingly possessed one or more images of

child pornography on the electronic device specified in that count. It could be the

same image or images on each device or different images, so long as there was at

least one on each device. As we will discuss in more detail in the next part, the

evidence proved without dispute that there were multiple still images and video

images of child pornography involving a number of different minors on each of

Roy’s four electronic devices. Roy had a sexual relationship with one of the

minors, and he had produced the pornographic still and video images of that child,

some of which were contained on all four devices. Each of the four devices also

contained other child pornography, involving different minors, that Roy had

downloaded from the internet.

II. The Evidence

For analytical ease we break the testimony and evidence presented during

the trial down into three categories: that presented before counsel’s brief absence

from the trial, that presented during his absence, and that presented after he

returned.

A. Before Counsel’s Absence

During the first two days of Roy’s six-day trial, with defense counsel present

at all times, the government called 10 witnesses whose testimony focused on the

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attempted child enticement charge in Count 1. Their unrefuted testimony showed

that Roy, a middle school teacher, set up a sexual encounter that he thought would

involve a 13-year-old girl and her mother, and he drove to a pre-arranged location

to meet the mother and child so that he could have sex with the child. Their

testimony also showed that he went to the illicit rendezvous with condoms and a

bottle of Astroglide lubricant in his pockets. Roy’s lawyer was in the courtroom

for the entirety of those first two days of trial and for the presentation of all of the

testimony and evidence about the crime that was charged in Count 1. He did not

miss any of it on any day. On the third day of trial, before the lunch break and in

counsel’s presence, there was additional testimony about Count 1, including the

fact that Roy had traveled more than an hour to get to the meeting place for the

purpose of having sex with a 13-year-old girl.

Much of the testimony on that third morning, however, went to Counts 2–5

and concerned Roy’s sexual relationship with L.B., the girl in the pornographic

images and videos that Roy himself had produced and stored, along with child

pornography from the internet, on his four electronic devices specified in those

four counts. That same morning, with defense counsel present, William Kulp, an

agent of the Florida Department of Law Enforcement, testified without objection

that L.B. was born on May 9, 1989. That means any pornography of her that was

produced before May 9, 2007 is child pornography. See 18 U.S.C. § 2256(1)

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(defining “minor” for this purpose as anyone under 18 years of age). The principal

at the high school L.B. had attended identified photos of her in various school

yearbooks, three of which were admitted into evidence without objection. The

principal’s testimony and those yearbook exhibits enabled the jury to compare how

L.B. looked at various ages during her school years with how she looked in the

pornography that Roy had produced.

The third and final government witness to be called before the lunch break

on the third day was Deputy Sheriff Charlie Longson, a computer forensics expert.

In defense counsel’s presence, he testified extensively about his qualifications and

how he examines a computer. He also testified about the user and

email/messenger accounts that he had found on Roy’s desktop computer. That

testimony was used, among other things, to put into evidence Roy’s email

messages setting up his sexual liaison with the (fictitious) 13-year-old and the

sexually oriented instant messenger conversations between Roy and (the real) L.B.

that were on his computer. Longson’s testimony was interrupted by a lunch break.

B. During Counsel’s Absence

Defense counsel returned late from the lunch break on the third day of trial

and missed seven minutes of Deputy Longson’s continuing testimony. During the

seven minutes counsel was out of the courtroom, Longson gave 18 answers to the

AUSA’s questions. All of those 18 answers concerned only six of the numerous

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images of child pornography, and all six of those images were of a single female

subject. Those particular images of the young female were found in only one of

the several file folders containing child pornography that were on Roy’s desktop

computer. That folder, when discovered by Longson on Roy’s desktop computer

had been labeled “2006-03-11.” On that date, L.B. indisputably would have been

16 years old.

Longson testified that those six images showed “a nude white

female . . . bound to a table by her feet with rope” and with “an orange

cloth . . . secured around her neck with silver duct tape.” He also testified that the

six images were taken with a Kodak v530 Zoom Digital Camera on March 10,

2005, were initially uploaded onto a computer on March 11, 2006, and were then

transferred to Roy’s desktop computer on April 4, 2009. During the seven minutes

while defense counsel was out of the courtroom, no exhibits were admitted into

evidence and Longson did not identify L.B. as the female in the six pornographic

images.

C. After Counsel Returned

Soon after counsel returned to the courtroom, the testimony that Longson

had given during counsel’s brief absence was repeated.1 And it was only after

1

There is only one difference. In his testimony while defense counsel was absent, Longson

said that the photographic images of the young female were taken on March 10, 2005; in his

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counsel returned that Longson identified L.B. as the young female in the six

images of pornography found on the desktop computer that he had been testifying

about.

This is how those events unfolded. After defense counsel entered the

courtroom, the prosecutor asked the court for permission to speak with him, which

the court granted. There was then a pause in the proceedings, and after the

prosecutor and defense counsel had an opportunity to speak, the prosecutor

approached witness Longson with 10 exhibits: the six pornographic images of

L.B. that Longson had found in the “2006-03-11” folder on Roy’s desktop

computer; three other pornographic images of L.B. from a different folder on that

computer, which was titled “2006-12-04”; 2 and a “contact sheet” generated by the

camera showing still images from a pornographic video of L.B., also recovered

from that second folder. See also infra n.3.

testimony after counsel returned, he said that they were taken on March 11, 2006. Regardless of

whether the photographic images were taken in March 2005 (when L.B. would have been 15

years old) or March 2006 (when L.B. would have been 16 years old), she was a minor at the

time. She did not turn 18 until May 9, 2007. See infra at 5–6.

2

In one place the transcript identifies this folder as “2006-02-04,” but the immediately

following question on that same page (“So December 4th, 2006?”) and the other references to the

folder name indicate that this was a transcription error and the folder was actually called “2006-

12-04.” For that reason, we are referring to it that way in this opinion. The difference, in any

event, is immaterial.

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With counsel present Longson then described in detail what each of those

images depicted, and he also testified that the six images from the “2006-03-11”

folder had been created on March 11, 2006, and uploaded onto Roy’s desktop

computer (which Roy had acquired later) on April 4, 2009. Those six images

showed the then-16-year-old L.B. “bound to a table by her feet with a . . . red and

white ski rope”; she was wearing an “orange hood across her head with silver duct

tape secured around the neck”; there was a “dildo inserted in her vagina” and “a

male’s penis . . . suspended above [her] body.” During that and all the other

testimony that would follow counsel was there.

He was present when Longson first described the other three pornographic

images of L.B. found on Roy’s desktop computer in the “2006-12-04” folder.

Those images showed L.B. lying naked in a bathtub, and written in “black ink both

on [her] chest between the breasts and then on [her] stomach over the nav[e]l”

were the words “Alex’s Little Cunt.” (Roy’s first name, of course, is Alexander,

and his roommate and L.B. both called him “Alex.”) Longson testified that those

particular pornographic images were taken on December 2, 2006. On that date,

L.B. indisputably would have been only 17 years old, which means she was a

minor for purposes of the child pornography charges against Roy in Counts 2–5.

At that point in the trial, Deputy Longson described for the first time the

contact sheet taken from the “2006-12-04” folder showing nine images from the

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pornographic video of L.B. A few pages later in the transcript, Longson repeated

his earlier testimony that all of the images of L.B. on Roy’s desktop had been taken

with a Kodak v530 Zoom Digital Camera, which is the model of camera recovered

from Roy’s home during the police search.

At the times all of those images of L.B. — the six in the “2006-03-11” folder

and the three plus the contact sheet from the “2006-12-04” folder — were created,

she was a minor for purposes of the child pornography charges against Roy in

Counts 2–5 because she was under 18 years of age. See 18 U.S.C. § 2256(1). The

10 exhibits consisting of those images were admitted into evidence without

objection. Being present during all of the testimony we have just recounted, Roy’s

trial counsel had an opportunity to object to the testimony or to admission of the

exhibits into evidence, if there were any basis for doing so. He did not object to

any of it.

In the presence of defense counsel, Longson also testified about finding on

Roy’s desktop, laptop, thumb drives, and CD-ROM discs numerous pornographic

videos of L.B. that had been made between October and December 2006 using a

Kodak v530 Zoom Digital Camera. It was undisputed that L.B. would have been

17 years old, and therefore a minor, during all of that time. Some of those videos

showed: L.B. bound and blindfolded with a “body net covering her body” and “a

red dildo inserted into her anus”; L.B. “fully nude” with a “dildo in her vagina”

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while she “perform[ed] fellatio on a white male”; L.B. “fully nude” with a

“vibrator in her vagina” while a white male “attempt[ed] to have annal [sic] sex

with her”; L.B. performing fellatio after removing a “school-girl outfit”; L.B.

having sexual intercourse with a man while she was tied up; and L.B. lying “nude

in [a] bathtub” with “Alex’s little cunt” scrawled across her chest and stomach

while a man urinated on her. Longson described each of those videos and they

were admitted into evidence. Although defense counsel was present during all of

that testimony and admission of exhibits, he did not object to any of it.

Deputy Longson’s testimony in defense counsel’s presence about the child

pornography that he found on Roy’s desktop, laptop, USB drive, and CD-ROM

discs was not limited to all of the images and videos of L.B. He also testified

about finding in temporary internet files on Roy’s desktop computer several

images of downloaded child pornography involving minors other than L.B., which

is a subject that had not been mentioned at all during counsel’s brief absence from

the courtroom. With counsel present, Longson described how one of those images

of other minors showed “two or three subjects under the age of 18 engaged in

sexual activity with two men.” He also described finding on Roy’s laptop a folder

labeled “Girls,” which contained pornographic images of other minors and files

named “kingpouge_14,” “vica16,” and “svet_16.” Longson testified that he had

found five images of child pornography featuring minors other than L.B. on Roy’s

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USB thumb drive. And he testified that he had found on Roy’s CD-ROM discs

multiple pornographic images of minors other than L.B., which were copies of

images on Roy’s other devices.

All of those were pornographic images of minors other than L.B., and all of

them were admitted into evidence. Although he was present during all of that

testimony, defense counsel did not object to any of it. Any one of those

pornographic images of minors other than L.B. was enough by itself to prove the

crime of possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B), (b)(2), which is the crime charged in Counts 2–5 of the

indictment.

Once the prosecution completed its direct examination of Longson, defense

counsel cross-examined him over the course of 45 pages of the trial transcript. He

attempted to challenge Longson’s testimony that the images and videos of L.B.

were created when she was under the age of 18. His challenge fell short, however,

because Longson explained that data embedded in the images and videos of L.B.

showed that they had been taken on a date when L.B. was a minor. Defense

counsel did not even attempt during cross-examination or at any other time to

challenge Longson’s testimony about the pornographic images involving minors

other than L.B.

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On the fourth day of trial, the government called its last witness and then

rested. The defense called a few witnesses, including Robert Deane Moody, its

own computer forensics expert. He testified that there were reported problems

with the battery life of the Kodak camera model that Roy had used to produce the

pornographic images of L.B., which would cause the camera’s internal clock to

reset to its default date and time if the camera’s battery went dead. If the internal

clock in the camera used to create the images of L.B. had reset, in his opinion it

was possible that the creation dates that Deputy Longson had noted for the L.B.

images and videos might be inaccurate.

Moody conceded, however, that the problems he had described were not

necessarily present in all Kodak v530 cameras, and he conceded that Roy’s camera

might not have had any battery issues anyway. He admitted that the dates applied

by a user to the computer folders in which the L.B. images were stored (i.e.,

“2006-03-11,” “2006-10-13,” and “2006-12-04”) were all consistent with the

creation dates that the camera had automatically embedded in those images

themselves. Moody also admitted that the images and videos were numbered

sequentially and none of them showed any signs of having reverted back to an

earlier date.

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III. The Facts Concerning Counsel’s Brief Absence

We know only these facts about counsel’s absence. On the third day of trial

during the testimony of Deputy Longson, who was the 12th of 13 government

witnesses, the judge announced the lunch break: “Okay. So let’s go ahead and

break for lunch and ask you to be back at 1:30.” The jury left the courtroom at

12:33. The next thing in the transcript is this parenthetical notation by the court

reporter: “(Court recessed at 12:34 p.m., and proceedings continued, without the

presence of defense counsel, at 1:29 p.m.).”

The testimony of Deputy Longson resumed at 1:29 p.m. and continued for

two-and-a-half transcript pages, consisting of 18 questions and answers, after

which the following occurred:

[AUSA]: Your Honor, may I have a moment while I approach Counsel?

(Defense counsel entered the courtroom at 1:36 p.m.)

(Pause.)

[AUSA]: Thank you, Your Honor. May I approach, Your Honor?

The Court: All right.

[AUSA]: I’m showing the witness Government’s Exhibits 73-01 through

73-10. 3

3

Exhibits 73-01 through 73-06 are the pornographic still images of L.B. from the “2006-03-

11” folder that was found on Roy’s desktop computer. Exhibits 73-07 through 73-09 are the still

pornographic images of L.B. that were found in the “2006-12-04” folder on Roy’s desktop

computer. And Exhibit 73-10 is the “contact sheet” showing several still images from the

pornographic video of L.B. in that same folder.

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To recap, after lunch the trial resumed one minute earlier than it had been

scheduled to, and defense counsel returned six minutes later than the time he had

been instructed to be there. As a result, he missed seven minutes of a trial that

lasted a total of 1,884 minutes or 31.4 hours (not counting recesses and jury

deliberations), which means he was present during 99.6 percent of the trial.

Counsel missed hearing only 18 answers given by one of the 13 government

witnesses against him, who collectively gave a total of approximately 2,745

answers. Even if we consider only the testimony of Deputy Longson, the witness

who was on the stand when he returned late, counsel missed only three of the 175

pages of Longson’s total testimony (which consisted of 111 pages of direct

examination, 45 pages of counsel’s cross-examination, and 19 pages of redirect

examination). We know that from the record.

We do not know why counsel returned late from lunch. We also do not

know if he realized when he walked in late that some testimony had been taken in

his absence, either because he heard testimony being given, or he saw that there

was a witness on the stand and the AUSA was up, or because his client who had

been present told him what had happened. And we do not know if either the

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AUSA or the judge realized that defense counsel was absent when the trial

resumed after lunch.4

One thing that we do know is that neither party wants us to take the

necessary steps to find out any of those facts. Both sides insist that instead of

remanding for an evidentiary hearing to determine all of the other facts about

counsel’s brief absence, including who knew what and when, we should decide the

appeal solely on the basis of the facts that are already in the record. 5 We will. 6

4

If we were required to decide whether the judge realized that defense counsel was not

present when he resumed the trial after the lunch break, we would take into account the fact that

the judge had previously stated he would not start court after a recess without the lawyers being

present. This is what the judge had told the jury before the recess at the end of the first day of

trial:

We will get started Monday at 9:00 o’clock. So if you are unfamiliar with coming

into the Fort Pierce area that time of day, I ask that you give yourself a few extra

moments and get here before 9:00 o’clock, 8:45, 8:50 or so, so we can get started

on time. If we are missing just one of us, you, me, the lawyers, we can’t get

started. So in order to keep the case on track time-wise and [as a] courtesy to

your fellow jurors, I would ask that you be here sometime before 9:00 o’clock so

we can get started promptly at 9:00.

(Emphasis added.)

5

The following exchange during oral argument between a judge of this Court and Roy’s

appellate counsel conveys Roy’s position on the remand question:

Marcus, J.: . . . . I want to follow up on Judge Wilson’s question. He asked you

whether a remand is necessary if there’s a Cronic violation. Your

answer was no, because the record is complete.

Mr. Rashkind: Correct.

Marcus, J.: Let me ask the converse question. It would be equally true that a

remand would be unnecessary even if harmless error applied, right?

Mr. Rashkind: I think that’s probably true. Yes, sir.

Marcus, J.: Okay. So there’s no reason for a remand no matter how we come at the

question.

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IV. An Assumption to Simplify the Analysis

And Focus on the Harmless Error Issue

The government argues that we should review only for plain error and that

there isn’t any. See United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005)

(“We have discretion to correct an error under the plain error standard where (1) an

error occurred, (2) the error was plain, (3) the error affected substantial rights, and

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

proceedings.”). Absent any knowledge of why defense counsel was absent,

whether the AUSA or judge realized he was not present, about what counsel

realized or didn’t when he walked in late, and about whether he took some

ameliorative action not reflected in the transcript, we will not apply the plain error

rule or remand for any findings necessary to decide if it is applicable. Instead, in

order to simplify our analysis, we will indulge the assumption that the plain error

Mr. Rashkind: I don’t — I think you’re right.

The government’s position was essentially the same.

6

The lead dissent has difficulty confining itself to the facts in the record, as the parties agree

that we should. It almost does, but just five sentences from the end of its opinion, the dissent

says: “When a district court allows substantive, inculpatory evidence against a criminal

defendant in the absence of any counsel and in the presence of the jury . . . .” Dissenting Op. at

265. The problem with “allows” is that it implies the district court noticed defense counsel was

absent and went on. There is nothing in the record to indicate that the district court did that.

Instead, as we have pointed out, the indication is that the court did not notice counsel was absent,

although we make no assumption either way. See supra n.4.

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rule does not apply even though there was no contemporaneous objection. We can

indulge that assumption because even with it the result is the same.

Given that scope of review, we do agree with Roy that absent evidence of an

attempt to deliberately inject error into the record and without a waiver from the

defendant, it is a violation of the Sixth Amendment for inculpatory testimony to be

taken from a government witness without the presence of at least one of the

defendant’s counsel, regardless of whether the judge or the AUSA noticed that

counsel was not there. We do not, however, agree with Roy that prejudice is

presumed and reversal is automatic. Instead, for the reasons that follow we hold

that the harmless error rule is applicable to this brief absence of counsel from the

courtroom, and that the absence was harmless beyond a reasonable doubt in this

case.

V. Analysis: Why the Harmless Error Rule Applies

and the Rare Exceptions to It Do Not

Given our assumptions in Roy’s favor, the outcome turns on whether the

error in this case, like most constitutional errors, is one to which the harmless error

rule applies or instead is one of those rare cases where the presumption of

prejudice applies.7 If counsel’s brief absence is a type of structural error, we

7

This case does not involve one of those more common Sixth Amendment claims alleging

that counsel’s performance was outside the wide range of reasonable professional assistance and

that it prejudiced the defendant, with prejudice being defined as a reasonable probability of a

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presume prejudice and there will be no room for the application of the harmless

error rule. If it is not structural error, and no other rare exception requiring that

prejudice be presumed fits, the harmless error rule applies. And, as we will explain

later, the error was harmless beyond a reasonable doubt. See infra Part VI.

A. The Importance of the Harmless Error

Rule and How Pervasively It Applies

The harmless error rule serves vital interests, chief of which is conserving

scarce judicial resources by avoiding pointless retrials. Applying the rule to

determine whether error, including constitutional error, affected the result of a trial

is also essential to avoid a “sporting theory of justice” and a regime of gotcha

review. See United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2400 (1976)

(quotation marks omitted).

“Reversal for error, regardless of its effect on the judgment, encourages

litigants to abuse the judicial process and bestirs the public to ridicule it.” Van

Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436 (quotation marks omitted). The

different result but for counsel’s deficient performance. See Strickland v. Washington, 466 U.S.

668, 689–90, 694–95, 104 S. Ct. 2052, 2065–66, 2068 (1984). That type of attorney error issue

is the stuff of Strickland v. Washington and the tens of thousands of decisions that have cited,

discussed, and applied that progenitor of modern ineffective assistance law. Given the limited

knowledge we have about the circumstances involving the absence of Roy’s counsel and what, if

anything, he realized when he returned to the courtroom, and given the assumptions we have

made, see supra Part IV, we are not treating this as an attorney error case. See Vines v. United

States, 28 F.3d 1123, 1127 (11th Cir. 1994) (“Strickland assumes the presence of counsel and is

therefore inapplicable in the absence of counsel context.”). Nor do the parties treat it as one.

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Supreme Court has explained that the harmless error rule “promotes public respect

for the criminal process by focusing on the underlying fairness of the trial.” Neder

v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 1838 (1999) (quotation marks

omitted); see also Johnson v. United States, 520 U.S. 461, 470, 117 S. Ct. 1544,

1550 (1997) (reviewing only for plain error a violation of the Sixth Amendment

right to jury trial and deciding that “there is no basis for concluding that the error

seriously affected the fairness, integrity or public reputation of judicial

proceedings. Indeed, it would be the reversal of a conviction such as this which

would have that effect.”) (quotation marks and alterations omitted); see also 28

U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari in any case, the

court shall give judgment after an examination of the record without regard to

errors or defects which do not affect the substantial rights of the parties.”);

Shinseki v. Sanders, 556 U.S. 396, 407–08, 129 S. Ct. 1696, 1705 (2009)

(construing § 2111 “as expressing a congressional preference for determining

‘harmless error’ without the use of presumptions insofar as those presumptions

may lead courts to find an error harmful, when, in fact, in the particular case before

the court, it is not”).

We are, after all, talking about “the harmless error rule,” not “the harmless

error exception.” Because errorless trials are not expected, much less required,

harmless error analysis is the rule, not the exception. How broadly the rule applies

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is evident from the Supreme Court’s observation that: “Since this Court’s

landmark decision in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), in

which we adopted the general rule that a constitutional error does not automatically

require reversal of a conviction, the Court has applied harmless-error analysis to a

wide range of errors and has recognized that most constitutional errors can be

harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263

(1991) (emphasis added). The Court drove home that point by listing in the

Fulminante opinion 16 different constitutional violations that it had held are

subject to the harmless error rule. And the decision in Fulminante became a 17th

example by holding that admission of a coerced confession is another error that can

and should be reviewed for harmlessness. Id. at 306–09, 111 S. Ct. at 1263–64.

See infra at 76–78.

The dissenting opinion seeks to sweep away the important point that the

Supreme Court made in Fulminante when it listed 16 constitutional errors (plus the

one in that case itself) that have been held to be subject to harmless error analysis

instead of a presumption of prejudice.8 See infra at 76–77. The dissent would

replace the Supreme Court’s instruction in Fulminante about the breadth of the

harmless error rule with an alternative message that only “unimportant and

8

There are three dissenting opinions. All of our references to “the dissent” and “the

dissenting opinion” are to the principal dissenting opinion, which was authored by Judge Wilson

and joined by Judge Martin.

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insignificant” constitutional errors are subject to harmless error review under

Chapman. See Dissenting Op. at 221. But under Chapman constitutional errors

are not to be classified by the importance or significance of the constitutional right

that was violated but by the effect of the violation “in the setting of a particular

case.” See Chapman, 386 U.S. at 22, 87 S. Ct. at 827. That is why, as the Court’s

Fulminante list shows, the harmless error rule has been applied to all types of

constitutional errors, including: defects of every sort in jury instructions;

restrictions on the right to cross-examine adverse witnesses; improper comments

on the right to remain silent at trial; violation of the right of the defendant to be

present at trial; admission of a coerced confession; admission of evidence in

violation of the right to counsel; and denial of counsel at a preliminary hearing.

See infra at 76–77. Those violations do not involve “unimportant and

insignificant” constitutional rights, but the Court has applied the harmless error

rule to them nonetheless.

B. The Cronic Exception

For virtually every rule of law, however, there is an exception or two,

sometimes more. One of those exceptions at issue in this appeal is the Cronic

exception, which provides that prejudice is to be presumed, and therefore the

harmless error rule does not apply, when a criminal defendant has been completely

denied the right to counsel for a critical stage of the trial, which is an error that

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contaminates the entire proceeding. See United States v. Cronic, 466 U.S. 648,

659 & n.25, 104 S. Ct. 2039, 2047 & n.25 (1984). When an error of that

magnitude happens, we do not ask whether the error was harmless; we irrebutably

presume that it was harmful. See id.; see also Bell v. Cone, 535 U.S. 685, 695–96,

122 S. Ct. 1843, 1850–51 (2002) (noting that Cronic “identified three situations

implicating the right to counsel” in which prejudice to the defense could be

presumed). Roy’s primary contention is that his counsel’s brief absence from the

courtroom is Cronic error. It is not.

The Cronic decision limited the presumption of prejudice to cases where

defense counsel “entirely fails to subject the prosecution’s case to meaningful

adversarial testing” in the trial or where there is “the complete denial of counsel” at

a “critical stage of [the] trial.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047

(emphasis added). Roy has never contended, and could not contend, that his

counsel entirely failed to subject the prosecution’s case to meaningful testing.

Defense counsel was present during 99.6 percent of Roy’s trial, and he vigorously

represented Roy. Among other things, he cross-examined nine of the

government’s 13 witnesses, including Deputy Longson whom he cross-examined

for 45 pages of the trial transcript. Counsel also called his own competing expert

witness in an attempt to rebut Longson’s testimony. And he gave a vigorous

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closing argument. In sum, Roy’s counsel did “subject the prosecution’s case to

meaningful adversarial testing.” Id.

Instead of questioning the effectiveness of his representation, Roy contends

his case falls within the Cronic exception because his counsel’s brief absence

during one small part of the testimony of one of the 13 government witnesses

against him amounts to denial of counsel during a critical stage of the trial. We

turn now to the critical stage requirement that must be met before an error will be

found to fit within the Cronic exception to the prejudice requirement and the

harmless error rule. See id.

The last time that we sat en banc in a case involving a Cronic issue, we

emphasized that the exception applied “to only a very narrow spectrum of cases”

where “the defendant was in effect denied any meaningful assistance at all.” Stano

v. Dugger, 921 F.2d 1125, 1153 (11th Cir. 1991) (en banc) (emphasis added)

(quotation marks omitted); see United States v. Kaid, 502 F.3d 43, 46 (2d Cir.

2007) (expressing “reluctance to extend a rule of per se prejudice in any new

direction”) (quotation marks omitted). And we emphasized that the burden of

establishing that an error warrants Cronic’s presumption of prejudice is “a very

heavy one.” Stano, 921 F.2d at 1153 (quotation marks omitted).

The difficulty of carrying that “very heavy” burden and the “very narrow”

scope of the Cronic exception are evident from the fact that the Supreme Court has

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repeatedly refused to find it applicable. The Court has held that the Cronic

exception did not apply, and the usual showing of actual prejudice was required,

where trial counsel failed to present any mitigating evidence or make any final

argument during the penalty phase of a capital trial. Bell, 535 U.S. at 692–98, 122

S. Ct. at 1849–52. And the Court has held that the Cronic exception did not apply

and a showing of actual prejudice was required where trial counsel, without the

defendant’s consent, conceded that the defendant was guilty of capital murder as

part of his strategy to avoid a death sentence. Florida v. Nixon, 543 U.S. 175, 178,

190–92, 125 S. Ct. 551, 555, 562–63 (2004). Only once in the 30 years since the

Cronic decision was issued has the Supreme Court applied Cronic to presume

prejudice. See Penson v. Ohio, 488 U.S. 75, 88, 109 S. Ct. 346, 354 (1988)

(holding that “the presumption of prejudice must extend as well to the denial of

counsel on appeal” when the granting of an attorney’s motion to withdraw had left

the petitioner “entirely without the assistance of counsel on appeal”). The scope of

the Cronic exception is that narrow; the burden of showing it applies is that heavy.

Even in Cronic itself the Court did not find that the Cronic exception to the

harmless error rule applied. That case involved a woefully inexperienced, young

attorney who had been appointed to serve as counsel less than a month before trial

in a complex mail fraud case, a case that the government had investigated for over

four-and-a-half years during which it had reviewed thousands of documents.

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Cronic, 466 U.S. at 649, 104 S. Ct. at 2041. Despite those extreme facts, the

Supreme Court refused to presume prejudice, requiring instead that the defendant

show that he actually was prejudiced. Id. at 662–66, 104 S. Ct. at 2049–50. The

Court remanded the case for the court of appeals to determine whether the

defendant could establish deficient performance and prejudice, as required by

Strickland v. Washington. Id. at 666–67, 104 S. Ct. at 2051.

The Supreme Court’s insistence on confining the Cronic exception within

narrow boundaries is evident from the fact that in Nixon, Bell, and Cronic itself the

Court reversed the decisions of lower courts that had held the exception applied

and had presumed prejudice. See Nixon, 543 U.S. at 189–93, 125 S. Ct. at 561–

63; Bell, 535 U.S. at 688, 702, 122 S. Ct. at 1847, 1854; Cronic, 466 U.S. at 666–

67, 104 S. Ct. at 2051. And in all of those cases, the risk of prejudice to the

defendant was much greater than the risk of prejudice to Roy from his lawyer’s

seven-minute absence during a six-day trial.

One way that the Supreme Court has ensured that the Cronic exception will

remain rare, the scope of the decision will be narrow, and the burden of

establishing the exception will be heavy is by requiring that there be a complete

denial or total failure of counsel, if not at trial generally, at least at a critical stage

of the prosecution. See Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (“The

presumption that counsel’s assistance is essential requires us to conclude that a

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trial is unfair if the accused is denied counsel at a critical stage of his trial.”); see

also Bell, 535 U.S. at 697, 122 S. Ct. at 1851 (noting that counsel’s failure to test

the prosecution’s case “at specific points” does not rise to the level of Cronic

error).

In the Cronic opinion itself, the Court’s examples of a critical stage include

Hamilton v. Alabama, 368 U.S. 52, 54–55, 82 S. Ct. 157, 159 (1961), where

prejudice was presumed when the defendant was entirely denied any counsel

throughout all of his arraignment, and White v. Maryland, 373 U.S. 59, 59–60, 83

S. Ct. 1050, 1051 (1963), where prejudice was presumed after the defendant was

entirely denied counsel throughout all of his preliminary hearing. See Cronic, 466

U.S. at 659 n.25, 104 S. Ct. at 2047 n.25; see also Strickland v. Washington, 466

U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984) (“Actual or constructive denial of the

assistance of counsel altogether is legally presumed to result in prejudice.”)

(emphasis added).

Roy’s position depends on his proposition that what took place during the

seven minutes when his counsel was out of the courtroom is unto itself a critical

stage of the trial. If the 18 answers that counsel missed hearing from one

government witness, out of a total of 2,745 answers from 13 government witnesses

during the trial, do not by themselves constitute a separate stage of the trial, Roy’s

Cronic argument fails. So Roy argues, as he must, that what occurred during those

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seven minutes must be considered by itself to be “a critical stage of his trial.”

Cronic, 466 U.S. at 659, 104 S. Ct. at 2047. 9

What, then, is a “critical stage” of a trial? We, like the Sixth Circuit, “would

welcome a comprehensive and final one-line definition of ‘critical stage’” for the

purposes of determining whether error is Cronic error. Van v. Jones, 475 F.3d 292,

312 (6th Cir. 2007). None exists, as that court recognized. Id. We do not,

however, need a comprehensive or pithy definition of the term to conclude that the

brief period during which Roy’s counsel was absent from the courtroom is not

itself a critical stage of the trial. If we held that seven minutes of a six day trial,

and 18 answers from one of 13 government witnesses, who gave a total of 2,745

answers during their testimony, amounts to a stage of a trial, we would have to

conclude that the presentation of the government witnesses at Roy’s trial was a

collection of 152 separate critical stages (2,745 ÷ 18 = 152.5) not even counting

other parts of the trial. If we did that, Cronic’s “very narrow” exception would be

very broad, contrary to what the Supreme Court and this Court stated. See Stano,

921 F.2d at 1153.

If 18 answers from one of 13 witnesses against a defendant were enough to

be a critical stage, what would not be? Would a single question and inculpatory

9

En Banc Br. of Appellant at 23 (“The quoted direct examination of the government expert

occurred during defense counsel’s absence. It involved the admission of inculpatory and

disputed evidence. It was, therefore, a critical stage of trial.”).

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answer from a government witness be enough to constitute a critical stage of the

trial? Under Roy’s extreme view it would be. He argues that: “The presentation

of inculpatory testimony by a government witness is a critical stage of trial.” En

Banc Br. of Appellant at 14. The dissenting opinion agrees with that view. If

counsel misses even one inculpatory answer from a government witness, in the

dissent’s view that’s it, irreparable error has been committed no matter what

happens in the rest of the trial. But it cannot be the law that every inculpatory

answer given by every government witness (or defense witness on cross-

examination) is a separate stage of the proceedings against the defendant. Trials

don’t consist of thousands of critical stages.

Although the brevity of counsel’s absence in this case and how little he

missed is striking, it’s not merely the fleeting nature of the absence that convinces

us that counsel was not gone during an entire “stage of [the] trial.” See Cronic,

466 U.S. at 659, 104 S. Ct. at 2047. Length alone does not always define a stage

of a trial. Depending on the circumstances, an arraignment could take 10 minutes

or less, although it is a critical stage. See Bell, 535 U.S. at 695–96, 122 S. Ct. at

1851.

The Supreme Court has instructed us that it has used the term “critical stage”

“to denote a step of a criminal proceeding, such as arraignment, that held

significant consequences for the accused.” Bell, 535 U.S. at 695–96, 122 S. Ct. at

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1851. And decision after decision shows that what the Court means when it does

use the term “stage” for Cronic purposes is a qualitatively distinct, discrete, and

separate phase or step of a criminal proceeding where the defendant has a right to

counsel, such as an arraignment, a post-indictment lineup, a preliminary hearing, a

plea hearing, closing arguments as a whole, or a sentence proceeding as a whole.

See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009)

(describing post-indictment interrogation as a critical stage); Iowa v. Tovar, 541

U.S. 77, 87, 124 S. Ct. 1379, 1387 (2004) (“A plea hearing qualifies as a ‘critical

stage.’”); Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205 (1977)

(“[S]entencing is a critical stage of the criminal proceeding at which [the

defendant] is entitled to the effective assistance of counsel.”); Gilbert v. California,

388 U.S. 263, 272, 87 S. Ct. 1951, 1956 (1967) (“[A] post-indictment pretrial

lineup . . . is a critical stage of the criminal prosecution . . . .”); White, 373 U.S. at

59–60, 83 S. Ct. at 1051 (“Whatever may be the normal function of the

‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as

arraignment . . . .”); Hamilton, 368 U.S. at 53, 82 S. Ct. at 158 (describing

arraignment as “a critical stage in a criminal proceeding”).

In conformity with what the Supreme Court has done in this area, our sister

circuits generally treat “stage” in “critical stage” as meaning either a self-contained

proceeding or a discrete and separately identifiable portion of a larger proceeding.

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See, e.g., United States v. Ross, 703 F.3d 856, 873–74 (6th Cir. 2012) (deciding

that a competency hearing is a critical stage); McNeal v. Adams, 623 F.3d 1283,

1285, 1289 (9th Cir. 2010) (after considering several factors that might “make a

proceeding a critical stage,” holding that a hearing on a motion to compel the

defendant to provide a DNA sample is not a critical stage) (emphasis added);

McDowell v. Kingston, 497 F.3d 757, 762–63 (7th Cir. 2007) (explaining that no

Supreme Court authority indicates “that [a defendant’s] testimony, isolated from

the rest of his defense, constitutes a critical stage of the litigation,” and holding that

even the complete testimony of the defendant is not a critical stage); Harrington v.

Gillis, 456 F.3d 118, 132 (3d Cir. 2006) (noting that “an appeal is a critical stage of

criminal proceedings”) (emphasis added); United States v. Sanchez-Barreto, 93

F.3d 17, 20 (1st Cir. 1996) (noting that a “plea withdrawal hearing” is a critical

stage) (emphasis added).

Those decisions of the Supreme Court and of other circuits are consistent

with the everyday definition of “stage” as “a single step or degree in a process; a

particular phase, period, position, etc., in a process, development, or series.”

Stage, Random House Webster’s Unabridged Dictionary (2d ed. 2001) 1853–54.

In our lives, as well as throughout the law, when we refer to “stages” we do not

mean fleeting moments or small parts of events. Instead, we use the word to refer

to larger, discrete component parts of a process that share a common characteristic.

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For example, adolescence is a stage of life, but we would never speak or think of

every minute, hour, or day during adolescence by itself as a separate or discrete

stage of life.

The 18 questions and answers that Roy’s counsel missed do not fit any

accepted definition of “stage” or “critical stage.” They do not constitute a separate

step in the process of the trial, or a discrete phase of it. Not only are they not a

stage of the trial, those 18 questions and answers are not even an identifiable stage

of Deputy Longson’s testimony. They are just a small part of it — only three

transcript pages out of 177 total pages of his testimony. Nothing but counsel’s

absence marks the 18 questions to Longson as different from all of the others put to

him before lunch or all of those put to him after he returned to the courtroom

following lunch. They are all questions and answers of the same type as those that

preceded and followed them, and they occurred during direct examination of the

same one of the 13 government witnesses, asked by the same government lawyer.

The 18 questions and answers counsel missed are just a small part of the more than

2,500 that occurred during the six-day trial. Not only that, but all of those 18

questions were repeated after counsel returned to the courtroom.

The only defining characteristic of what took place in the trial during the

seven minutes while Roy’s counsel was absent is that it occurred while Roy’s

counsel was absent. Roy would have us define “stage” to equate with the absence

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of an attorney so that anything that happened in a trial during the absence of an

attorney, however brief it was, would be a stage of the trial. That definition is

hopelessly circular. Because the brief period during which Roy’s counsel was

absent is not itself a “stage of his trial,” Roy did not suffer “the complete denial of

counsel” for “a critical stage of his trial.” Cronic, 466 U.S. at 659, 104 S. Ct at

2047. For that reason, there was no Cronic error in this case.

We will discuss the Cronic “critical stage” arguments of Roy and the dissent

now. After doing that, we will turn to the related but different question of whether

a presumption of prejudice should arise when defense counsel is absent from a

substantial portion of the trial.

1. The Geders, Herring, and Brooks Decisions

The dissenting opinion relies on Geders v. United States, 425 U.S. 80, 96

S. Ct. 1330 (1976), Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550 (1975), and

Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891 (1972), which it contends

involved “the denial of counsel ‘at a critical stage of . . . trial.’” Dissenting Op. at

255 & n.14 (alteration in original) (emphasis omitted) (quoting Cronic, 466 U.S. at

659, 104 S. Ct. at 2047). That interpretation ignores the unique type of

constitutional violations those cases involved and it ignores what the Court later

said about those decisions. See Perry v. Leeke, 488 U.S. 272, 279–80, 109 S. Ct.

594, 599–600 (1989).

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In its pre-Cronic decision of Geders, the Court applied a presumption of

prejudice to a Sixth Amendment violation that occurred when the trial court barred

defense counsel from advising or otherwise assisting his client during a 17-hour

recess. 425 U.S. at 91, 96 S. Ct. at 1337. The order had prevented the defendant

from discussing important matters with counsel, including “tactical decisions to be

made and strategies to be reviewed.” Id. at 88, 96 S. Ct. at 1335. The Geders

decision did not explicitly apply the “critical stage” rule or analysis; in fact, the

opinion does not mention the term “critical stage” or even the word “stage.”

Instead, as the Court explained later, Geders was one of a line of decisions

presuming prejudice where a defense attorney was prevented from, or impeded in,

rendering assistance of counsel to his client because of an unconstitutional statute

or court order. See Perry, 488 U.S. at 279–80, 109 S. Ct. at 599–600. Recognizing

that special subtype of Sixth Amendment violation, as the Court pointed out in

Perry, is consistent with what Strickland itself held. Id. at 279, 109 S. Ct. at 599.

While shortcomings and failures of counsel require a petitioner to show prejudice

from the deficient performance, “direct governmental interference with the right to

counsel is a different matter.” Id. The Perry Court quoted the following passage

from Strickland to drive home the point:

Government violates the right to effective assistance when it

interferes in certain ways with the ability of counsel to make

independent decisions about how to conduct the defense. See, e.g.,

Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330 (1976) (bar on

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attorney-client consultation during overnight recess); Herring v. New

York, 422 U.S. 853, 95 S. Ct. 2550 (1975) (bar on summation at

bench trial); Brooks v. Tennessee, 406 U.S. 605, 612–13, 92 S. Ct.

1891, 1895 (1972) (requirement that defendant be first defense

witness); Ferguson v. Georgia, 365 U.S. 570, 593–96, 81 S. Ct. 756,

768–70 (1961) (bar on direct examination of defendant).

Id. at 280, 109 S. Ct. at 599 (citations altered) (quotation marks omitted).

The statutory or court-ordered interference exception to the prejudice

requirement that was applied in Geders, Herring, and Brooks, that was recognized

in Strickland, and that was discussed in Perry, does not apply in this case and does

not govern our critical stage analysis. No statute or court-ordered bar kept Roy’s

trial counsel out of the courtroom for those seven minutes following lunch on the

second day of trial. And no statute or court order interfered with the ability of

Roy’s counsel to make independent decisions about how to conduct the defense.

2. The Gonzalez-Lopez, Woods, and Williams Decisions

The dissenting opinion also relies heavily on the Supreme Court’s decision

in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557 (2006), which

did not involve an attorney’s brief absence from the courtroom. Instead, it

involved a complete violation of “the right of a defendant who does not require

appointed counsel to choose who will represent him.” Id. at 144, 126 S. Ct. at

2561; see id. at 143–44, 126 S. Ct. at 2561 (holding that the district court’s

erroneous rulings “violated respondent’s Sixth Amendment right to paid counsel of

his choosing”); id. at 146, 126 S. Ct. at 2562 (“[T]he right at stake here is the right

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to counsel of choice[.]”); id. at 147, 126 S. Ct. at 2563 (“The right to select counsel

of one’s choice, by contrast [to the right to effective assistance of counsel], has

never been derived from the Sixth Amendment’s purpose of ensuring a fair trial.”);

id. at 152, 126 S. Ct. at 2566 (“[T]he Government has conceded that the District

Court here erred when it denied respondent his choice of counsel.”).

The deprivation of the right to retained counsel of choice in Gonzalez-Lopez

was anything but momentary; it lasted longer than the trial itself. It was complete,

lasting throughout the entirety of the opening statements, the presentation of all of

the prosecution’s case, the presentation of all of the defense case, the closing

arguments, the jury instructions, the return of the verdict, and the post-verdict

proceedings. Id. at 142–44, 126 S. Ct. at 2560–61. As the Supreme Court noted,

“the deprivation of choice of counsel pervade[d] the entire trial.” Id. at 150, 126

S. Ct. at 2565. As a result, the start-to-finish “erroneous deprivation of the right to

counsel of choice” in Gonzalez-Lopez had “consequences that are necessarily

unquantifiable and indeterminate” and “unquestionably qualifies as ‘structural

error.’” Id. at 150, 126 S Ct. at 2564 (quotation marks omitted). 10

10

In its Gonzalez-Lopez opinion the Court cited Cronic only once, actually relying on Cronic

as support for the proposition that a defendant is usually required to show prejudice. See

Gonzalez-Lopez, 548 U.S. at 146, 126 S. Ct. at 2562 (“The cases the Government relies on

involve the right to the effective assistance of counsel, the violation of which generally requires a

defendant to establish prejudice. See, e.g., Strickland, 466 U.S. at 694, 104 S. Ct. 2052; Mickens

v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237 (2002); United States v. Cronic, 466 U.S. 648, 104

S. Ct. 2039 (1984).”) (citation reformatted).

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The Supreme Court explained in some detail why it would be impossible to

apply the harmless error rule and gauge the prejudicial effect of depriving a

defendant of the attorney he had retained and forcing him to use a different one

during the entire trial and post-trial stages:

Different attorneys will pursue different strategies with regard

to investigation and discovery, development of the theory of

defense, selection of the jury, presentation of the witnesses, and

style of witness examination and jury argument. And the

choice of attorney will affect whether and on what terms the

defendant cooperates with the prosecution, plea bargains, or

decides instead to go to trial. In light of these myriad aspects of

representation, the erroneous denial of counsel bears directly on

the “framework within which the trial proceeds,” Fulminante,

supra, at 310, 111 S. Ct. 1246 — or indeed on whether it

proceeds at all. It is impossible to know what different choices

the rejected counsel would have made, and then to quantify the

impact of those different choices on the outcome of the

proceedings. Many counseled decisions, including those

involving plea bargains and cooperation with the government,

do not even concern the conduct of the trial at all. Harmless-

error analysis in such a context would be a speculative inquiry

into what might have occurred in an alternate universe.

Id. at 150, 126 S. Ct. at 2564–65. The Court also explained the difference between

the denial of retained counsel of choice and more typical ineffective assistance

violations:

[I]f and when counsel’s ineffectiveness “pervades” a trial, it

does so (to the extent we can detect it) through identifiable

mistakes. We can assess how those mistakes affected the

outcome. To determine the effect of wrongful denial of choice

of counsel, however, we would not be looking for mistakes

committed by the actual counsel, but for differences in the

defense that would have been made by the rejected counsel —

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in matters ranging from questions asked on voir dire and cross-

examination to such intangibles as argument style and

relationship with the prosecutors. We would have to speculate

upon what matters the rejected counsel would have handled

differently — or indeed, would have handled the same but with

the benefit of a more jury-pleasing courtroom style or a

longstanding relationship of trust with the prosecutors. And

then we would have to speculate upon what effect those

different choices or different intangibles might have had. The

difficulties of conducting the two assessments of prejudice are

not remotely comparable.

Id. at 150–51, 126 S. Ct. at 2565. Those explanations underscore how

distinguishable the Gonzalez-Lopez case is from this one.

None of the Supreme Court’s reasoning about why it is impossible to gauge

the prejudicial impact of forcing a different attorney on the defendant throughout

the entire trial and post-trial stages of a case applies to a seven-minute absence of

counsel during a six-day trial when the missed testimony was not only transcribed

for review but was also repeated in the presence of counsel after he returned (and

as repeated was transcribed again).

The momentary absence of counsel from the courtroom in this case is

entirely different from the complete denial of counsel of choice throughout the

Gonzalez-Lopez case. A momentary absence, unlike a complete denial of counsel

of choice, does not affect the choice of “strategies with regard to investigation and

discovery, development of the theory of defense, selection of the jury, presentation

of the witnesses, and style of witness examination and jury argument.” Id. at 150,

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126 S. Ct. at 2564. It does not “affect whether and on what terms the defendant

cooperates with the prosecution, plea bargains, or decides instead to go to trial.”

Id. It does not require us to consider, as courts would with a complete denial of

counsel of choice, “such intangibles as argument style and relationship with the

prosecutors,” or what things the denied counsel “would have handled

differently — or indeed, would have handled the same but with the benefit of a

more jury-pleasing courtroom style or a longstanding relationship of trust with the

prosecutors.” Id. at 151, 126 S. Ct. at 2565. The denial of counsel of choice

“bears directly on the framework within which the trial proceeds — or indeed on

whether it proceeds at all.” Id. at 150, 126 S. Ct. at 2564–65 (quotation marks and

citation omitted). The momentary absence of Roy’s counsel from the courtroom

does not.

To borrow the Supreme Court’s words, “[t]he difficulties of conducting the

two assessments of prejudice are not remotely comparable.” Id. at 151, 126 S. Ct.

at 2565. They are not comparable because what Roy’s momentarily absent counsel

would have done, or should have done, had he been present are “identifiable

mistakes,” and “[w]e can assess how those mistakes affected the outcome.” Id. at

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150–51, 126 S. Ct. at 2565; see infra Part VI (explaining why the error was

harmless beyond a reasonable doubt in this case).11

The dissent also goes astray in its reading of Woods v. Donald, 575 U.S.

___, 135 S. Ct. 1372 (2015) (per curiam), a decision that actually reversed a grant

of habeas relief based on a lower court’s holding that Cronic error occurred when

defense counsel was absent for 10 minutes during the testimony of a prosecution

witness. See Dissenting Op. at 246. The Sixth Circuit had held that the state court

decision denying the petitioner habeas relief because of that 10-minute absence

was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court within the meaning of 28 U.S.C.

§ 2254(d)(1). 135 S. Ct. at 1375. In reversing the Sixth Circuit, the Supreme

Court pointed out that none of its own holdings have addressed defense counsel’s

absence during the presentation of testimony that is irrelevant to the defendant’s

theory of the case. Id. at 1377. It did not hold or say, however, that a brief

absence during testimony that is relevant to the defendant’s theory of the case is

Cronic error. In fact, the Court cautioned that it was expressing “no view on the

merits of the underlying Sixth Amendment principle,” because “[a]ll that matters

11

How distinguishable Gonzalez-Lopez is from this case and others involving brief

absences of counsel from the courtroom is evident from the dissent’s inability to point to any

decision of any court anywhere suggesting that the holding of Gonzalez-Lopez or anything the

Supreme Court said in that case is applicable to momentary absence of counsel situations.

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here, and all that should have mattered to the Sixth Circuit, is that we have not held

that Cronic applies to the circumstances presented in this case.” Id. at 1378

(quotation marks omitted).

Despite that caution, the dissent insists that more mattered in the Woods

decision than the Supreme Court realized. What the Court failed to realize,

according to the dissent, is that despite its protestations to the contrary, it was

offering “valuable insight into the type of distinctions the Court may make if and

when it takes such a case on direct review.” Dissenting Op. at 246 n.11. So what

should we believe –– the Supreme Court’s emphatic statement that it was

expressing “no view on the merits of the underlying Sixth Amendment principle,”

or the dissent’s insistence that yes it was? We choose to believe the Supreme

Court meant what it said. See Mathis v. United States, 579 U.S. ___, 136 S. Ct.

2243, 2254 (2016) (“[A] good rule of thumb for reading our decisions is that what

they say and what they mean are one and the same . . . .”).

The dissent also relies on the decision in Williams v. Pennsylvania, 579

U.S. ___, 136 S. Ct. 1899 (2016). Dissenting Op. at 259–260. But that decision

dealt solely with structural error involving a biased judge. It had nothing to do

with a brief absence of defense counsel from the courtroom. To the extent that the

dissent cites it for the proposition that structural error requires reversal, the answer

is that of course it does but there was no structural error in this case.

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3. The Vines Decision

Except in the now-vacated panel decision in this case, we have not yet

decided whether the brief absence of counsel during the presentation of testimony

that directly inculpates the defendant is Cronic error. A couple of decades ago a

panel of this Court did decide that the absence of defense counsel while

government witnesses gave testimony that did not directly inculpate the defendant

was not Cronic error. Vines v. United States, 28 F.3d 1123, 1128 (11th Cir. 1994).

The case involved a two-defendant, two-day drug trial, and at 4:15 p.m. on the first

day counsel for Vines left “for the remainder of the day” for some undisclosed

reason. Id. at 1125. The opinion does not disclose how much of the trial day

remained when counsel left, but it does reveal that during counsel’s absence, an

FBI agent and another government witness testified. Id. at 1126. The FBI agent

testified, among other things, about how the manner of shipping that the

defendants used in that case “fit the modus operandi of contraband smugglers.” Id.

Vines was convicted on the conspiracy charge and acquitted on the

distribution charge, and he argued on appeal from the denial of his 28 U.S.C.

§ 2255 motion that the absence of his counsel during the testimony of those two

government witnesses was a Sixth Amendment violation that entitled him to have

his conviction set aside. Id. at 1126–27. After noting that the Strickland decision

applies only where counsel is present, the Court assumed, without deciding, that

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the absence of counsel during the taking of testimony is constitutional error. Id. at

1127–28. It addressed Vines’ argument that the absence of his counsel from the

trial was not only a Sixth Amendment violation but also Cronic error giving rise to

an irrebutable presumption of prejudice. Id. at 1127–28. The Court reasoned that

“Cronic’s presumption of prejudice applies to only a very narrow spectrum of

cases,” and concluded that Vines was not one of those rare cases. Id. at 1128 & n.8

(quotation marks omitted).

In reaching that conclusion, the Court rejected Vines’ argument “that under

Cronic the taking of evidence is a critical stage of trial per se,” and stated that “we

decline to give birth to a rule that the taking of evidence is necessarily a critical

stage of trial.” Id. at 1128. After reviewing the record, it found that “no evidence

directly inculpating Vines was presented during his counsel’s absence.” Id. The

holding of Vines fitted to the facts before the Court was that: “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.” Id.

While panel decisions do not bind us when we sit en banc, we find

persuasive the Vines holding that the taking of testimony or other evidence that

only indirectly inculpates the defendant is not a critical stage of the trial. As the

Court said there: “While trial counsel may exercise poor judgment in absenting

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himself or herself from a portion of a trial, such flawed judgment does not

necessarily infect the entire trial.” Id. at 1129. Counsel’s absence was neither

Cronic error nor some other type of structural error but instead was trial error

“capable of quantitative assessment” and subject to the harmless error rule. Id.

That is all that the Vines decision did hold or could hold. It did not hold ––

and because the facts of that case did not present the issue it could not have held ––

that the taking of any testimony that does directly inculpate the defendant is a

critical stage of the trial for Cronic purposes. See Watts v. BellSouth Telecomms.,

Inc., 316 F.3d 1203, 1207 (11th Cir. 2003) (“[J]udicial decisions cannot make law

beyond the facts of the cases in which those decisions are announced.”); see also

Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003);

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000).

4. The Decisions of Other Circuits

A handful of other circuits have addressed Cronic issues arising from

counsel missing part of a trial. Some of the cases giving rise to those issues are

more factually similar to this one than others are. And some of those decisions are

more persuasive than others.

i. The Out-of-Circuit Decisions Roy Relies On

Roy argues that some decisions from other circuits support his bold claim

that any inculpatory testimony, however brief, constitutes a critical stage of any

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trial regardless of the circumstances. See Burdine v. Johnson, 262 F.3d 336 (5th

Cir. 2001) (en banc); United States v. Russell, 205 F.3d 768 (5th Cir. 2000); Olden

v. United States, 224 F.3d 561 (6th Cir. 2000); Green v. Arn, 809 F.2d 1257 (6th

Cir. 1987), vacated on other grounds, 484 U.S. 806, 108 S. Ct. 52 (1987),

reinstated, 839 F.2d 300 (6th Cir. 1988). All four of those decisions are readily

distinguishable.

In two of them, Russell and Olden, counsel was absent for more than an

entire day of trial. The Fifth Circuit decided in Russell that the absence of a lawyer

for two days of his client’s trial for drug and money-laundering conspiracy was

Cronic error requiring a presumption of prejudice. See Russell, 205 F.3d at 769–

70; 772–73. During his absence counsel missed the testimony of no fewer than 18

government witnesses — not questions but witnesses — and the admission of

“numerous exhibits,” all of which went to prove the existence of the money-

laundering conspiracy. See id. at 770. Russell’s attorney did not hear a single

word of the testimony of those 18 government witnesses, nor did he have the

chance to cross-examine any of them.

The difference between that case and this one is striking. While counsel in

Russell missed two full days and all of the testimony of 18 government witnesses,

Roy’s counsel did not miss a day, or an hour, or even 10 minutes worth of

testimony of a single witness. He missed only seven minutes of the testimony of

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one government witness; he was present during all but three of the 177 transcript

pages of that witness’ testimony; and he heard every bit of all of the testimony of

the other 12 government witnesses. Not only that, but the Fifth Circuit in Russell

rejected the position that Roy takes in this case. It unequivocally stated: “Russell

urges this court to adopt a bright line rule that the taking of any evidence at trial in

the absence of counsel is prejudicial per se under [Cronic]. Cronic does not so

hold and we decline to fashion such a rule.” Id. at 771 (citation omitted). We

agree.

Another decision Roy relies on is Olden, where the Sixth Circuit concluded

that a defense attorney’s “excessive absence” during trial amounted to Cronic

error. Olden, 224 F.3d at 566, 568–70. Counsel was “absent on numerous

occasions during trial,” including for two days during which he missed hearing the

testimony of at least two prosecution witnesses, which incriminated his client. Id.

at 568. That is obviously different from what happened here.

In the other two out-of-circuit decisions that Roy relies on, the courts were

unable to determine exactly how long defense counsel had been absent during the

trial. In Green, which like Olden was a Sixth Circuit decision, defense counsel was

absent for at least 100 minutes of trial, during which the key government witness

against his client was cross-examined by another defendant’s attorney. See Green,

809 F.2d at 1260–61. How much more than the hour and forty minutes of that

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important testimony counsel missed could not be determined from the record.12

And in Burdine, another Fifth Circuit decision, the court found Cronic error

because the capital defendant’s counsel had slept through “a not insubstantial

portion of the 12 hour and 51 minute trial,” including during the prosecutor’s

presentation of evidence against the defendant. 262 F.3d at 338–40, 348–49. One

juror testified that he recalled counsel sleeping as many as 10 different times

during the short trial. Id. at 339. By contrast, seven minutes is not a substantial

portion of a six-day trial. And one absence, whether of consciousness or

physically, is not 10. It is also worth noting that the Fifth Circuit explicitly stated

12

There is some ambiguity in the Green opinion about the actual length of defense counsel’s

absence, but portions of the transcript that are quoted in that opinion indicate that he was gone

for at least an hour and forty minutes of the trial. See Green, 809 F.2d at 1260 (noting that

defense counsel for Green’s codefendants had begun cross-examining a witness at 2:00 p.m. and

by 3:40 p.m. the defendant’s trial counsel still had not returned to the courtroom).

Not only that, but Green’s counsel may have also missed other portions of the criminal

proceedings against her, including an entire hearing on a suppression motion, the government’s

closing arguments at trial, and the jury asking the judge questions that had come up during its

deliberations. See id. at 1259 n.1.

The Green court did suggest that “[t]he absence of counsel during the taking of evidence on

the defendant’s guilt is prejudicial per se” and forecloses any inquiry into harmless error. Id. at

1263. However, the court undercut that apparently categorical statement when it noted that

“some absences by a criminal defendant’s attorney might be so de minimis that there would be

no constitutional significance.” Id. at 1261. In any event, the actual holding of the Green

decision cannot be that any absence of counsel during any inculpatory testimony requires a

presumption of prejudice because those were not the facts of that case, and the holding of a case

cannot extend past its facts, as we have repeatedly held. See, e.g., Anders, 346 F.3d at 1031;

Watts, 316 F.3d at 1207; Aguillard, 217 F.3d at 1321. If the holding of Green were that the

absence of counsel during the taking of any evidence of a defendant’s guilt is “prejudicial per

se,” we would disagree for the reasons explained throughout this opinion.

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in Burdine that its holding was “limited to the egregious facts found” in that case.

Id. at 349.

All four of the cases on which Roy bases his argument do have one thing in

common with each other: they are all cases in which a meaningful prejudice

analysis would be difficult, if not impossible, and would consume a lot of judicial

resources. In both Russell and Olden, for example, the court would have had to

pore over two days of inculpatory testimony by multiple witnesses to even begin

the prejudice analysis. See Russell, 205 F.3d at 769–70, 772–73; Olden, 224 F.3d

at 568–69. And in Green and Burdine, the problem was even worse, because the

record in those cases did not disclose exactly when counsel was absent (or in

Burdine asleep), which adds a thick layer of speculation on top of that which is

inherent in any kind of prejudice determination. See Burdine, 262 F.3d at 339–40;

Green, 809 F.2d at 1260–62. When an appellate court knows that counsel’s

absence was substantial but cannot tell exactly what testimony or other evidence

counsel missed, the prejudice inquiry is more difficult and may be impossible.

That is not a problem here. We know exactly when Roy’s counsel was

absent. We know exactly which 18 questions and answers he missed. We know

exactly which of those 18 questions and answers were repeated after he returned to

the courtroom. And we know what counsel did, and did not do, after he heard

those questions asked and answered. We also know which counts of the

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indictment those questions and answers were directly related to and which ones

they were not. Because we know all of that, and given the brevity of counsel’s

absence, the prejudice inquiry in this case is not impossible; it is not even difficult.

See infra Part VI.

ii. The Out-of-Circuit Decisions That

Are More Analogous and Persuasive

The Second Circuit has refused to presume prejudice from defense counsel’s

absence in a case that is far more similar to this one than any of those that Roy

relies on. See United States v. Kaid, 502 F.3d 43 (2d Cir. 2007). In the Kaid case

several codefendants were convicted of conspiring to commit money laundering

and of trafficking in contraband cigarettes. Id. at 45. Defense counsel for one of

the codefendants, Azzeaz Saleh, had missed 20 minutes of the trial because he

misunderstood when the judge planned to resume after a lunch break. Id. at 44–45.

The trial began without him, and while he was absent the government presented

evidence that was highly inculpatory of Saleh. Id. at 45. Counsel missed the

government showing the jury a video of Saleh and his codefendants purchasing the

allegedly contraband cigarettes, and counsel missed a witness testifying that at nine

separate points the video showed Saleh. Id.

Saleh argued on appeal that he was entitled to a presumption of prejudice

because his attorney had been absent during a critical stage of the trial. Id. at 45–

46. The Second Circuit unequivocally rejected that argument. Id. at 46–47. It

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affirmed Saleh’s convictions after concluding that he had not shown that he was

prejudiced by his counsel’s 20-minute absence because (1) counsel had been able

to challenge the admissibility of the identification testimony the day before he was

absent from the courtroom, and (2) after counsel returned to the courtroom he had

been able to cross-examine the witness who had repeatedly identified Saleh in the

video. Id. at 45, 47.

The Second Circuit’s decision that the presumption of prejudice did not

apply in that case is important. The circumstances in Roy’s case are even stronger

for affirmance, not only because the absence in Kaid was nearly three times as long

as the absence in Roy’s case, but also because there is no indication in the Kaid

opinion that the evidence counsel missed was repeated after counsel returned to the

courtroom, as it was in Roy’s case. See generally 502 F.3d 43.

The Second Circuit in Kaid is not alone in its analysis or conclusion. In our

view, the best reasoned out-of-circuit decision holding that a brief absence of

counsel is not structural error is the Eighth Circuit’s in the Sweeney case. See

Sweeney v. United States, 766 F.3d 857 (8th Cir. 2014). In that case, defense

counsel left the courtroom and went to the restroom during the direct examination

of a key prosecution witness –– a co-conspirator who had flipped and was

providing inculpatory testimony against the defendant. Id. at 859. While counsel

was out of the courtroom, the cooperating co-conspirator witness answered 43 of

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the prosecutor’s questions (as compared to 18 questions in Roy’s case) covering

six transcript pages (as compared to three in Roy’s case). See id. at 859, 861;

Redacted Trial Tr. at 122–29, United States v. Sweeney, No. 06-CR-0249(PJS) (D.

Minn. July 22, 2009) (ECF No. 390). That is twice as many transcript pages of

testimony and more than twice as many questions and answers as counsel missed

in Roy’s case.

Sweeney was a 28 U.S.C. § 2255 proceeding, and the certificate of

appealability stated the issue as whether “the actual absence of counsel for a brief

period of time during the direct testimony of a government witness [was] subject to

harmless-error analysis.” Id. at 858. The parties agreed, and the Eighth Circuit

recognized, that the absence of counsel, which the judge knew about and permitted

without Sweeney’s consent, was a violation of the Sixth Amendment right to

counsel. Id. at 859–60. Sweeney argued “that in light of Cronic, the error is a

structural defect that is presumptively prejudicial and requires reversal,” while the

government countered “that because of the brevity of Sweeney’s counsel’s

absence, it amounted to nothing more than a trial error subject to a harmless-error

analysis.” Id. at 860.

In its analysis, the Eighth Circuit noted that: “The Supreme Court has

divided constitutional violations that occur during a criminal proceeding into two

categories: trial errors and structural defects.” Id. It looked to, and quoted from,

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Supreme Court decisions for the definition of those terms: “A ‘trial error’ is an

error that may ‘be quantitatively assessed in the context of other evidence

presented,’ and is subject to harmless-error analysis.” Id. (quoting Fulminante, 499

U.S. at 307–08, 111 S. Ct. at 1264). By contrast, a “‘structural defect’ is

something that ‘affects the framework within which the trial proceeds, rather than

simply an error in the trial process itself’ and thus ‘defies analysis by “harmless-

error” standards.’” Id. (quoting Fulminante, 499 U.S. at 309–10, 111 S. Ct. at

1265) (alterations omitted).

The Eighth Circuit pointed out that “[t]he Supreme Court has recognized

that most constitutional errors can be harmless, and that structural defects are the

exception and not the rule.” Id. (citation and quotation marks omitted). It quoted a

Supreme Court’s decision holding that “[o]nly structural defects that undermine

‘the fairness of a criminal proceeding as a whole require reversal without regard to

the mistake’s effect on the proceeding.’” Id. (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 81, 124 S. Ct. 2333, 2339 (2004)) (alterations omitted). The

harmless error rule applies to everything else, or as the Supreme Court put it in the

decision the Eighth Circuit quoted, except for defects that undermine the fairness

of the entire criminal proceeding, “relief for error is tied in some way to prejudicial

effect.” Dominguez Benitez, 542 U.S. at 81, 124 S. Ct. at 2339.

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The Eighth Circuit also relied on the Supreme Court’s holding in Satterwhite

that “those ‘Sixth Amendment violations that pervade the entire proceeding’

can ‘never be considered harmless.’” Id. at 860–61 (quoting Satterwhite, 486 U.S.

at 256, 108 S. Ct. at 1797) (emphasis in Sweeney). Applied to counsel absences

during trial, that holding means that those counsel absences extensive enough to

pervade the trial process and undermine the fairness of the trial as a whole amount

to Cronic or structural error. All other counsel absences are trial errors subject to

the harmless error rule. And the court concluded that “Sweeney’s counsel’s brief

absence was not a ‘complete’ absence because it only lasted three minutes,” and

“the brevity of the absence distinguishes this case from the ‘complete denial of

counsel’ discussed in Cronic.” Id. at 861 (quoting Cronic, 466 U.S. at 659, 104

S. Ct. at 2047) (emphasis in Sweeney).

In affirming the rejection of Sweeney’s Cronic claim, the Eighth Circuit

quoted part of the district court’s reasoning in that case, which is worth requoting

here. This is what the Eighth Circuit by adoption said about why the

circumstances in that case (which are materially identical to those in this case) are

well-suited for harmless error analysis:

The fact that the record demonstrates precisely what [Sweeney’s

counsel] missed while he was out of the room — and the fact that his

absence was so brief — allows the Court to confidently assess

whether Sweeney was harmed by [his counsel’s] absence. Indeed, the

Court is far better equipped to conduct a harmless-error analysis in

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this case than it is in other contexts, in which a substantial amount of

speculation is unavoidable.

Id. (quoting the district court) (alterations in original). The court in Sweeney knew

exactly what counsel missed because it had a transcript of the testimony taken

while he was gone, just as we do in this case.

The reasoning in Sweeney, which we adopt, dovetails with the Supreme

Court’s explanation of its decision in Satterwhite. See 486 U.S. 249, 108 S. Ct.

1792. The Sixth Amendment error in Satterwhite occurred when a psychiatrist for

the State testified at a capital sentencing proceeding based on what the defendant

had told him during an examination conducted without the knowledge of his

attorney in violation of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866 (1981).

Satterwhite, 486 U.S. at 251–55, 108 S. Ct. at 1795–96. In determining that the

Sixth Amendment violation resulting from admission of the psychiatrist’s

testimony was not structural error but was instead trial error subject to review for

harmlessness, the Supreme Court explained:

We have permitted harmless error analysis in both capital and

noncapital cases where the evil caused by a Sixth Amendment

violation is limited to the erroneous admission of particular evidence

at trial. In Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174

(1972), for example, the Court held the admission of a confession

obtained in violation of Massiah v. United States, 377 U.S. 201, 84

S. Ct. 1199 (1964), to be harmless beyond a reasonable doubt. And

we have held that harmless error analysis applies to the admission of

identification testimony obtained in violation of the right to counsel at

a postindictment lineup. Moore v. Illinois, 434 U.S. 220, 98 S. Ct.

458 (1977); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967)

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(capital case); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926

(1967). Just last year we indicated that harmless error analysis would

apply in a noncapital case to constitutional error in the use of a

psychological evaluation at trial. Buchanan v. Kentucky, 483 U.S.

402, 425, n.21, 107 S. Ct. 2906, 2919, n.21 (1987).

Id. at 257–58, 108 S. Ct. at 1798 (emphasis added) (citations reformatted).

The Sixth Amendment violation in Roy’s case did not occur merely because

counsel was late coming back from lunch. Tardiness does not violate the

Constitution. The Sixth Amendment violation occurred because a government

witness answered 18 questions in counsel’s absence. The constitutional error was

in admitting that particular evidence, those answers, without counsel being there.

And, as the Supreme Court held in Satterwhite and in five other decisions that it

cited, harmless error analysis applies “where the evil caused by a Sixth

Amendment violation is limited to the erroneous admission of particular evidence

at trial.” Id. at 257, 108 S. Ct. at 1798. It applies here. 13

13

Many state appellate courts have also concluded that the harmless error rule applies to the

temporary absence of defense counsel from the courtroom. See Jackson v. State, 983 So. 2d 562,

574–77 (Fla. 2008) (applying harmless error analysis to trial court’s decision to hear testimony

from the victim for purposes of sentencing the defendant while defense counsel was absent);

Hodges v. State, 116 S.W.3d 289, 292–94 (Tex. Ct. App. 2003) (applying harmless error analysis

to defense counsel’s absence during presentation of adverse testimony from a detective during

the penalty phase of a case); Wilson v. State, 764 So. 2d 813, 815–19 (Fla. 4th DCA 2000)

(applying harmless error analysis to defense counsel’s absence during jury deliberations and

proceedings involving a question from the jury); State v. Scherzer, 694 A.2d 196, 237–40 (N.J.

Super. Ct. App. Div. 1997) (applying harmless error analysis where defense counsel was absent

“from many pretrial proceedings; a portion of jury voir dire; several days of testimony during

trial, including the entire testimony of the State’s expert witness . . . ; parts of [the] codefendants’

and the prosecutor’s summations; a portion of the charge conference; some of the jury’s

questions during deliberations; and also the reading of the jury’s verdict”). In the Hodges

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5. The Dissent’s “Sole Defendant” Theory

The dissent attempts to distinguish the well-reasoned decisions in Kaid and

Sweeney on the ground that those cases grew out of trials with more than one

defendant, while Roy was the only defendant in this trial. See Dissenting Op. at

244–245. Indeed, at least five times the dissenting opinion appears to argue that

the issue is not whether Cronic error occurs when a defendant is without counsel in

the courtroom during the presentation of inculpatory evidence in any trial, but

instead the issue is whether it is Cronic error for that to happen in a single-

defendant trial. See Dissenting Op. at 220 (“no other defendants or defense

counsel present”), 243 (“in a single-defendant trial”), at 244 (“none [of the other

cases] involved a single defendant deprived of his sole counsel”), at 245–246 (“the

sole defendant” in “a single-defendant, single-counsel case”), at 258 (“in the trial

of a single defendant represented by a single lawyer”).

The reasoning of the Second Circuit in Kaid and the Eighth Circuit in

Sweeney applies regardless of the number of defendants on trial. Completely

lacking from the dissent’s attempt to distinguish Kaid and Sweeney is any

convincing explanation for why the issue should turn on whether other defendants

decision, the Texas Court of Appeals stated that it agreed with our decision in Vines that a

temporary absence of counsel during part of the trial does not necessarily infect the entire trial

and preclude application of the harmless error doctrine. Hodges, 116 S.W.3d at 294 n.7.

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represented by other counsel were also being tried. If a defendant’s right to counsel

is violated by his attorney’s brief absence from the courtroom during inculpatory

testimony against his client, there is no reason that it should matter if other

attorneys representing other defendants were in the courtroom at the time his

counsel was not there. The right violated is the right of each defendant to have

counsel representing him, not each defendant’s non-existent right to have counsel

representing his codefendants.

An attorney who represents a co-defendant has an ethical duty to zealously

advance the interests of that co-defendant within the bounds of the law, even where

those interests conflict with the interests of any other person who is on trial. He

ethically may, in keeping with his client’s best interests –– and in the finest

traditions of the Bar –– throw another defendant under the bus to help out his

client. An attorney has no ethical duty to look after, or care about, the interests of

anyone else regardless of whether their attorney is present. As the dissent states

elsewhere in its opinion, defense counsel is “both his client’s mouthpiece and his

client’s confidant.” Dissenting Op. at 264. An attorney for a co-defendant is not

another defendant’s mouthpiece and confidant. He is not, as the dissent seems to

believe, alternate defense counsel for any or all other co-defendants. Because the

presence or absence of other counsel for other defendants is legally and logically

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irrelevant to the Cronic or structural error issue, the Kaid and Sweeney decisions

are not distinguishable on that basis. 14

Because there is no principled way to limit an application of Cronic to

single-defendant trials, a holding in favor of Roy would have far-reaching effects.

As the dissenting opinion at the panel stage warned, if Roy’s position were

adopted:

Whatever measures a judge takes in response to today’s [panel]

ruling, it will be practically impossible to prevent presumptive

prejudice error in a large, multidefendant, long-running trial. See

Green v. Arn, 809 F.2d 1257, 1265 (6th Cir.) (Boggs, J., dissenting),

vacated and remanded on other grounds, 484 U.S. 806, 108 S. Ct. 52

(1987), reinstated on remand, 839 F.2d 300 (6th Cir. 1988) (“If a

reversal is mandated whenever counsel (even retained) is absent from

the courtroom for any significant period, we make such an escape a

sure ticket to a new trial. In multi-defendant cases, judges will be

required to keep a continual head count . . . lest cagey counsel be able

to invoke this new rule.”). After the judge, jury, prosecutors, defense

attorneys, and others have spent months in a complex trial and

verdicts of conviction have been returned, none of it will mean

anything for any defendant whose attorney can show that he was

absent or dozed off during any of the testimony from any of the many

witnesses against his client. That will be true even if the attorney

missed only a few of the thousands of questions and answers that

directly or indirectly inculpated his client during the long trial. It will

not matter, as the [panel] majority insists it does not matter in this

case, whether the inculpatory testimony that the attorney missed was

repeated in his (conscious) presence. And it will not matter in the

14

As we explain later, the dissent’s argument that the structural error inquiry varies

depending on whether the absence of counsel occurs in a single-defendant or multi-defendant

trial is also inconsistent with its argument that the absence of counsel is structural error because

counsel must continually scrutinize the faces and body language of witnesses and jurors. See

infra n.19.

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least why the attorney was absent or whether the judge noticed the

absence. That is the rule the [panel] majority adopts.

United States v. Roy, 761 F.3d 1285, 1323 (11th Cir.) (Ed Carnes, C.J.,

dissenting), reh’g en banc granted, opinion vacated, 580 F. App’x 715 (11th Cir.

2014) (citation reformatted).

Of course, even if a holding in favor of Roy could somehow be limited to

single-defendant trials, handing out automatic reversals anytime defense counsel

misses even a question or two still would not be cost-free. And the cost could be

significant, as the case of Manuel Noriega shows. He was the sole defendant in his

trial, which lasted for seven months. See United States v. Noriega, 117 F.3d 1206,

1209 (11th Cir. 1997); Boyd M. Johnson, III, Note, Executive Order 12,333: The

Permissibility of an American Assassination of a Foreign Leader, 25 Cornell Int’l

L.J. 401, 425 n.157 (1992) (stating that trial lasted for seven months); Noriega

Now Alone as Defendant, Chi. Trib., Sept. 5, 1991, 1991 WLNA 3826740. After

hearing evidence for seven months, the jury returned a verdict convicting him of

eight counts of racketeering, manufacturing and distributing cocaine, and traveling

in foreign commerce to promote an unlawful enterprise. See Noriega, 117 F.3d at

1209 n.1, 1210. The position of Roy and the dissent is that if it were later shown

that Noriega’s counsel had been out of the courtroom for seven minutes, or even

half a minute, during those seven months of trial and had missed any inculpatory

testimony at all, even if that testimony was repeated after counsel returned, the

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verdict would have to be set aside and the seven months of trial repeated with a

new jury, even if the government could show beyond any reasonable doubt that

counsel’s brief absence was harmless.

Unable to deal with the force of this single-defendant example on its

position, the dissent attempts to recast it as a “fearful[ ] query.” Dissenting Op. at

256. The point of the example is not that Manuel Noriega is a particularly bad

character as criminal defendants go. Nor is the point that if the defendant is a

really bad actor (such as someone like Roy who sexually molests a minor) we

should not do what the Constitution requires. Of course we should do what the

Constitution requires, but the question is what does it require and not require. The

Noriega example illustrates that if the Constitution required what the dissent insists

it does, it would lead to ludicrous results such as repeating a seven-month trial

merely because counsel for a sole defendant was out of the courtroom for one-half

minute, even though the only testimony taken while he was out was presented

again after he returned. The Constitution does not require such results, but the

dissent’s position would.

C. The Absence for a Substantial

Portion of the Trial Exception

Many of the problems encountered in determining whether to apply a

presumption of prejudice to a defense counsel’s absence from trial arise because

courts try to cram all absence-of-counsel situations into Cronic’s Procrustean bed

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or, to vary the metaphor, fail to heed Cardozo’s warning about “the repression of a

formula, the tyranny of tags and tickets.” Benjamin N. Cardozo, Mr. Justice

Holmes, 44 Harv. L. Rev. 682, 688 (1931). The formula capable of impeding

thought in this area is the critical stage one, and the tag or ticket slapped on the

result is the Cronic label. They are useful (and obligatory) where appropriate to

the factual situation, but they are problematic or worse if used where they do not

apply. The law does not countenance, much less require, absurdities. And it is

absurd to say that every absence of counsel during a critical stage, however

momentary and whatever the circumstances, requires that a presumption of

prejudice be applied. It is also absurd to say that the only absences that justify a

presumption of prejudice are those that extend throughout an entire critical stage,

such as a trial. We don’t have to choose either extreme on the spectrum.

When it comes to the absence of counsel from some of a trial, the rule is not

“any is all,” nor is it “all or nothing.” The Supreme Court has never held that any

absence at all of counsel from trial warrants a presumption of prejudice no matter

what, and it has never held that only if counsel is absent throughout the entire trial

should prejudice be presumed. Some of our sister circuits have avoided either

extreme and the absurdities they lead to by recognizing, at least implicitly, that the

Cronic critical stage standard is not the exclusive formula for determining whether

to presume prejudice from the absence of counsel. They have supplemented the

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critical stage standard with a substantial portion of the trial standard. Under that

standard, even if counsel is not absent throughout an entire critical stage, prejudice

should be presumed if he is absent for a substantial portion of the trial.

1. The Substantial Portion Exception

and the Cases from Which It Arose

The substantial portion exception has arisen out of cases in which defense

counsel fell asleep during the trial. Courts have recognized that, for Sixth

Amendment presumption of prejudice purposes, an attorney who is not consciously

present at trial because he is asleep is equivalent to an attorney who is not

physically present because he is outside the courtroom. See Burdine, 262 F.3d at

349 (“Unconscious counsel equates to no counsel at all.”); United States v.

DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987) (“[S]leeping counsel is tantamount

to no counsel at all . . . .”); Javor v. United States, 724 F.2d 831, 834 (9th Cir.

1984) (“[U]nconscious or sleeping counsel is equivalent to no counsel at all.”).

None of the circuits has concluded that counsel dozing off momentarily or sleeping

through a few questions and answers is enough to presume prejudice instead of

permitting the government to show beyond a reasonable doubt that the lapse was

harmless.

Four of the five circuits that have addressed the issue presume prejudice if

counsel slept through a substantial portion of the trial. See United States v. Ragin,

820 F.3d 609, 619 (4th Cir. 2016) (“We agree with other circuits and hold that a

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defendant’s Sixth Amendment right to counsel is violated when that defendant’s

counsel is asleep during a substantial portion of the defendant’s trial [and that a

presumption of prejudice is required].”); Muniz v. Smith, 647 F.3d 619, 623 (6th

Cir. 2011) (joining the Ninth, Fifth, and Second Circuits that “have held that the

denial of counsel with presumed prejudice only occurs once counsel sleeps through

a ‘substantial portion of defendant’s trial’”) (brackets omitted); Burdine v.

Johnson, 262 F.3d 336, 348-49 (5th Cir. 2001) (en banc) (finding that “defense

counsel slept during substantial portions” of the trial and in those circumstances

“prejudice must be presumed”); Javor v. United States, 724 F.2d 831, 834–35 (9th

Cir. 1984) (“When a defendant’s attorney is asleep during a substantial portion of

his trial, the defendant has not received the legal assistance necessary [and

prejudice must be presumed].”).

The other one of the five circuits to address the sleeping lawyer situation, the

Second Circuit, did so in Tippins v.Walker, 77 F.3d 682, 685–87 (2d Cir. 1996).

There the court declined to use the “substantial portion” standard because it found

the word “substantial” to be “unhelpful” in determining when prejudice must be

presumed in a sleeping lawyer situation. Yet, in its place the court adopted the

closely analogous standard of “repeatedly unconscious” or “repeated and

prolonged lapses” in consciousness. Id. at 687, 689. Whether application of a

presumption of prejudice turns on counsel having slept during a substantial portion

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of the trial (as the Fourth, Fifth, Sixth, and Ninth Circuits phrase it) or on his

having slept repeatedly for prolonged periods of time (as the Second Circuit

phrases it), all five circuits to address the matter agree that more than a short

absence of consciousness due to sleep during trial is required for prejudice to be

presumed.

But what is a “substantial portion” of the trial for purposes of this standard?

The Fourth Circuit offered this guidance:

While we conclude that the manner in which [trial counsel]

slept in the instant case was substantial, we decline to define this term

for all cases. Whether a lawyer slept for a substantial portion of the

trial should be determined on a case-by-case basis, considering, but

not limited to, the length of time counsel slept, the proportion of the

trial missed, and the significance of the portion counsel slept through.

At the same time, however, while we decline to dictate precise

parameters for what must necessarily be a case-by-case assessment,

we caution district courts that the scope of our holding today should

not be limited to only the most egregious instances of attorney

slumber.

Ragin, 820 F.3d at 622 n.11 (emphasis added). The three non-exclusive factors

listed — length of time missed, proportion of trial missed, and significance of the

missed portion — are all important.

We add to the Fourth Circuit’s non-exclusive list of factors for determining

whether what counsel missed was a substantial portion of the trial another factor at

least as important as those it set out: whether the specific part of the trial that

counsel missed is known or can be determined. Do we know what testimony he

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did not hear because he was asleep or outside the courtroom? This factor should

bear heavily on whether to presume prejudice or give the government an

opportunity to show beyond a reasonable doubt the lack of it, because in

determining if the defense was prejudiced because of something counsel missed, it

helps a lot to know what counsel missed. The Ninth Circuit in Javor noted the

difficulty in determining prejudice with “a record which lacked any indication of

when Javor’s attorney was alert and when he was sleeping.” 724 F.3d at 833; see

also Tippins, 77 F.3d at 686 (“[I]f counsel sleeps, the ordinary analytical tools for

identifying prejudice are unavailable. The errors and lost opportunities may not be

visible in the record, and the reviewing court . . . may be forced to engage in

unguided speculation.”) (quotation marks omitted). To inform our analysis of what

it means to be absent for a substantial portion of the trial, we turn to the facts in

each of the sleeping lawyer cases to see how substantial, or how repeated and

prolonged, the absence of consciousness by counsel was in the four cases where

prejudice was presumed and in the one where it was not.15

15

The dissenting opinion insists that the substantial portion standard turns on a “rigid

comparison” and “mechanical focus,” one that looks only at the “minutes and seconds” that

defense counsel was consciously or physically absent from the courtroom. See Dissenting Op. at

250. Of course the amount of time counsel was out is relevant. Would the dissent rigidly and

mechanically have us ignore the length of time and treat one minute’s absence the same as one

day’s absence? Would it have us treat a few questions missed as equivalent to a few volumes of

testimony? Apparently the dissent would, because its position is that even a single inculpatory

answer in itself constitutes a critical stage and structural error –– that there are hundreds or even

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2. Application by Other Circuits of the

Substantial Portion of Trial Standard

We begin with the decision that gave birth to the substantial portion test. In

the Ninth Circuit’s Javor decision, defense counsel “was sleeping while testimony

pertaining to the petitioner was being adduced.” 724 F.2d at 834. He told a co-

defendant’s counsel that “he had missed some of the testimony and asked . . . if he

had missed anything related to the petitioner.” Id. (ellipses in original). Not only

that but “[t]he trial judge noted that Javor’s attorney was often ‘dozing’ and that

other attorneys ‘nudged’ and ‘kicked’ him to wake him up.” Id. Those facts

convinced the Ninth Circuit that counsel had been consciously absent during a

substantial portion of the trial and prejudice should be presumed.

We have already discussed the Fifth Circuit’s decision in the Burdine case.

See supra at 47. For present purposes, it is useful to recall that in Burdine defense

counsel slept repeatedly through “a not insubstantial portion of the 12 hour and 51

minute trial,” including during the prosecutor’s presentation of evidence against

thousands of separate critical stages in every trial. We would be the first circuit in the country to

adopt such an extreme position.

We disagree with the dissent’s position and agree with the five other circuits that have

adopted the substantial portion standard (counting the Second Circuit which has adopted a

materially identical standard). In doing so we recognize that the standard involves a case-by-

case inquiry and consideration of a number of non-exclusive factors. It is neither rigid nor

mechanical.

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the defendant. 262 F.3d at 338–40, 348–49. A juror testified to having seen

counsel asleep as many as 10 different times during the trial and for “a good

probably at least 10 minutes” on one occasion, and testimony showed that there

were “lots of incidents” of him sleeping while the prosecution was questioning

witnesses. Id. at 339. The deputy clerk, who was in the best position to observe

counsel, testified that he “was asleep for long periods of time during the

questioning of witnesses.” Id. The state collateral trial court found that “defense

counsel repeatedly dozed and/or actually slept during substantial portions of

Burdine’s capital murder trial so that defense counsel was, in effect, absent.” Id. at

340 (brackets omitted). On those facts the Fifth Circuit held that prejudice should

be presumed under the substantial portion standard but was careful to limit its

holding to “the egregious facts” in that case. Id. at 349.

In Ragin trial counsel did not dispute that he had slept. 820 F.3d at 622. In

fact, “counsel was asleep for much of Ragin’s trial.” Id. at 613. Throughout the

15-day trial, he slept “frequently . . . almost every day . . . morning and evening for

30 minutes at least at a time.” Id. at 621 (quotation marks and brackets omitted)

(ellipses in original). Some of the time he was seen “resting his head” as he slept.

Id. Finding “it impossible not to conclude that [he] slept and therefore was not

functioning as a lawyer during a substantial portion of the trial,” the Fourth Circuit

presumed prejudice. Id. at 622–23.

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In the Tippins case, the Second Circuit found that “counsel was unconscious

for numerous extended periods of time during which the defendant’s interests were

at stake.” 77 F.3d 685. He slept every day of the 12-day trial; he slept during

“two-thirds of the testimony” of the confidential informant who was a “critical”

prosecution witness; and he slept through “the majority” of the “damaging”

testimony of a co-defendant. Id. at 687–90 (brackets omitted). The court reporter

described counsel’s sleeping as “a continuous thing.” Id. at 688. More than one

witness actually heard him snoring. Id. at 688–89. It was on those extreme facts

that the Second Circuit found that defense counsel had not merely been inattentive

but had suffered repeated and prolonged lapses of consciousness because he slept

through much of the trial, justifying a presumption of prejudice. Id. at 687–90.

The attorney in the Muniz case “was asleep for an undetermined portion of a

single cross-examination,” although it was the cross-examination of his own client.

647 F.3d at 624. The “total cross-examination was fairly short, spanning only 26

pages of trial transcript” and “he objected near the end of [it],” leading the Sixth

Circuit to conclude that “Muniz’s lawyer therefore must have only been asleep for

a brief period.” Id. Distinguishing cases like Tippins where counsel had slept for

substantial portions of the trial, the court held that a presumption of prejudice

should not apply in that case. Id.

3. The Relationship of the Cronic Exception

and the Substantial Portion of Trial Exception

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When counsel is not consciously present — either because he is asleep or

physically absent –– throughout an entire discrete, critical stage of a criminal

proceeding, Cronic requires that prejudice be presumed. And as we have already

explained, see supra at 27–32, a critical stage is either a self-contained proceeding

or a discrete and separately identifiable piece of one. See, e.g., Iowa v. Tovar, 541

U.S. 77, 87, 124 S. Ct. 1379, 1387 (2004) (plea hearing); Gardner, 430 U.S. at 358,

97 S. Ct. at 1204–05 (sentence hearing); Gilbert, 388 U.S. at 272–74, 87 S. Ct. at

1956–57 (post-indictment pretrial lineup); White, 373 U.S. at 59–60, 83 S. Ct. at

1051 (preliminary hearing); Hamilton, 368 U.S. at 54, 82 S. Ct. at 158–59

(arraignment). We believe that where counsel’s absence does not extend

throughout an entire critical stage, such as the trial or all of the taking of testimony,

the more appropriate test or standard is whether counsel missed a substantial

portion of it. The sleeping lawyer cases illustrate the use of that standard, but it is

also appropriate for physical absences during part of a trial. As at least three

circuits have noted, for Sixth Amendment presumption of prejudice purposes cases

involving sleeping and physically absent counsel should be subject to the same

standard for determining whether to presume prejudice or allow the government an

opportunity to show the lack of it beyond a reasonable doubt. See Burdine, 262

F.3d at 349; DiTommaso, 817 F.2d at 216; Javor, 724 F.2d at 834. We agree.

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Our conclusion that the absence of an attorney from the courtroom for an

insubstantial portion of the trial does not justify a presumption of prejudice under

the Cronic critical stage exception to the harmless error rule and that the substantial

portion of trial standard is the appropriate one for those circumstances is not

inconsistent with any Supreme Court decision. The Court has never held that the

testimony of one or some witnesses is a critical stage for Cronic purposes, much

less that a small part of the testimony of a single witness is. And the Court has

never held that prejudice should be presumed if defense counsel is absent from the

courtroom for an insubstantial portion of trial or that it should not be presumed if

counsel is absent for a substantial portion of the trial. The Supreme Court has

never addressed this issue.

The substantial portion of trial standard, and the four non-exclusive factors

we have discussed for applying it, not only explains the sleeping lawyer decisions

of our sister circuits, which explicitly apply that standard, it also explains the

Russell and Olden physical absence decisions that Roy relies on. In Russell,

counsel was absent for two days of his client’s trial for conspiracy to commit drug

trafficking and money laundering, missing the testimony of at least 18 prosecution

witnesses and the admission of “numerous exhibits,” all of which went to prove

guilt. See 205 F.3d at 769–70, 772. Obviously, counsel was absent for a

substantial portion of the trial. The Olden case involved counsel’s “excessive

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absence” during trial, including two days during which he missed incriminating

testimony of prosecution witnesses. See 224 F.3d at 566, 568–69. Again, that was

obviously a substantial portion of the trial. The Green case involved an absence of

at least an hour and forty minutes during which a key government witness testified,

and any determination of prejudice in that case would be complicated by the fact

that exactly what other parts of the trial counsel missed could not be determined.

809 F.2d at 1259–60, 1259 n.1. That is the fourth factor of the substantial portion

standard or test, and it weighs in favor of the court’s decision to presume prejudice

in Green.

We recognize that many of the decisions about partial absences succumb to

the tyranny of tags and tickets by putting the “Cronic error” or “critical stage” label

on their analysis and conclusions instead of, or in addition to, speaking in terms of

whether the attorney was out for a substantial portion of the trial. See, e.g., Ragin,

820 F.3d at 619–20, Burdine, 262 F.3d at 338, 341. Their analysis, however,

focuses on whether counsel was mentally or physically absent for a substantial

portion of the trial. As the Fourth Circuit has suggested, the substantial portion

determination should be made on a case-by-case basis considering, among other

factors, the length of time counsel was out, the proportion of the trial missed, and

the significance of what he missed. Ragin, 820 F.3d at 622 n.11.

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An additional factor to be considered is whether the reviewing court can

determine when counsel was out and what he missed. While there is usually no

way to tell exactly when a dozing lawyer was “out” during the trial, see, e.g.,

Burdine, 262 F.3d at 348 n.7, determining when and for how long counsel was

physically absent is usually less difficult. The Eighth Circuit underscored that

point in its Sweeney decision. See 766 F.3d at 861 (“The fact that the record

demonstrates precisely what [Sweeney’s counsel] missed while he was out of the

room — and the fact that his absence was so brief — allows the Court to

confidently assess whether Sweeney was harmed by [his counsel’s] absence.”)

(quoting with approval the district court) (alterations in original); see also Kaid,

502 F.3d at 44–47 (refusing to presume prejudice where court knew exactly what

counsel had missed when he returned to courtroom 20 minutes late after lunch).

This case shows that as well. We know exactly when Roy’s counsel was absent

and precisely which questions were asked and answers given during that time. See

supra at 6–7.

A final consideration that courts should keep in mind in applying the

substantial portion of the trial standard is that we are not talking about whether to

presume that there was no prejudice or harm. We are talking about whether to

presume that there was prejudice or harm, which would deny the government the

opportunity to persuade the court beyond a reasonable doubt that in light of all of

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the evidence in the case there was no prejudice or harm. Even without a

presumption of prejudice the defendant will be granted a new trial where there is

any reasonable doubt about his having been prejudiced or harmed. 16

4. Application of the Substantial Portion

Standard to the Facts of this Case

As we have pointed out far more than once, Roy’s counsel missed only

seven minutes of a trial that lasted 1,884 minutes or 31.4 hours (not counting

recesses and jury deliberations), which is less than one-half of one percent of trial

time. He missed only 18 answers that were given by one of the government’s 13

witnesses who collectively gave a total of approximately 2,745 answers, meaning

he missed less than one percent of the total. And we know exactly which questions

and answers he missed. His physical absence was far more momentary and far less

substantial than any in the five cases that our sister circuits have decided under the

substantial portion standard. We have no trouble concluding that Roy’s counsel

did not miss a substantial portion of the trial.

16

The dissent does not face up to this important point, insisting that we are concluding “that

directly inculpatory evidence introduced against a defendant in a single-defendant, single-

counsel case while defense counsel is absent constitutes harmless trial error.” See Dissenting

Op. at 245 (emphasis omitted). That is not the issue and it is not what we are holding. What we

are holding is that the constitutional violation, like virtually all constitutional violations, is

subject to analysis under the harmless error rule. It will lead to reversal unless the government

carries its burden of proving that, when measured in light of all the evidence in the case, the

violation was harmless beyond a reasonable doubt.

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No presumption of prejudice is due under that exception, just as none is due

under the Cronic critical stage exception. That prejudice is not to be presumed

does not mean that there was no constitutional violation, and it does not mean there

is no possibility of the convictions being reversed. It means, instead, that the

harmless error rule applies, and his convictions should be reversed unless the

government has carried its burden of showing the error was harmless beyond a

reasonable doubt. Which it has. See infra Part VI.

D. Roy’s Speculation Arguments and the

Breadth of the Harmless Error Rule

Roy argues that the harmless error rule cannot apply because we cannot be

certain whether a brief absence of counsel during trial affected the verdict and

courts should never speculate about such things. The most that can be said for that

argument is that it is couched in good grammar and sensible syntax, but it is

unpinned from precedent and loose from logic.

To begin with, almost every determination about whether a deficiency, error,

or defect in counsel’s representation or some other aspect of the trial was

prejudicial or harmless requires “speculation” in the sense that Roy is using the

word. He is using that word to mean “deciding without knowing for certain.”

Consider what the Supreme Court said about that in the Sears capital case.

Defense counsel had found and presented some mitigating circumstance evidence

but not all that he could and should have. See Sears v. Upton, 561 U.S. 945, 945–

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46, 130 S. Ct. 3259, 3261 (2010). Some of the mitigating circumstance evidence

that counsel did not find and present might have had an adverse effect or it might

have had a net beneficial effect for the defense. See id. at 947–51, 130 S. Ct. at

3261–64. The state collateral court rejected Sears’ ineffective assistance claim

because he had failed to prove prejudice. Id. at 952, 130 S. Ct. at 3264–65.

In explaining its holding in that case, the state court said that “it is

impossible to know what effect a different mitigation theory would have had on the

jury.” Id. at 952, 130 S. Ct. at 3264 (alterations omitted). Its thinking was that a

court could only speculate about prejudice and speculation was not good enough so

why try. See id. at 946, 130 S. Ct. at 3261. Reversing the state court, the Supreme

Court emphatically rejected the notion that it requires too much speculation to

determine whether different evidence or a different theory would have affected a

jury’s decision in a given case. The Court explained that assessing whether the

prejudice prong of an ineffective assistance of counsel claim has been met, whether

there is a reasonable probability of a different result but for the error, “will

necessarily require a court to ‘speculate’” about the effect of the deficiency or

error. Id. at 956, 130 S. Ct. at 3266. But speculation in that broad sense, which

equates with the lack of certainty, is not impermissible; it is inevitable, the Court

noted. See id.

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It would be nice if there were a software program into which a trial record

could be scanned, an error could be input into the program, and the result would

pop up on screen as: “prejudicial” or “harmless.” That is not, however, the nature

of the enterprise. Prejudice inquiries require the exercise of a court’s best

judgment. All prejudice or harmlessness determinations require some measure of

estimation or of what the Supreme Court in Sears described as permissible

“speculation.” Every work day all across the country courts decide cases by

determining, to the best of their abilities, whether something that defense counsel

did, or did not do, prejudiced or harmed the defendant by adversely affecting the

result of the trial. If that is speculation, then speculation is rampant in the nation’s

courts.

We will not do what the Supreme Court reversed the state court for doing in

Sears and what Roy would have us do in this case, which is throw up our hands

and decline to make a determination about prejudice and harmlessness. See also

Sanders, 556 U.S. at 407, 129 S. Ct. at 1704–05 (“We have previously warned

against courts’ determining whether an error is harmless through the use of

mandatory presumptions and rigid rules rather than case-specific application of

judgment, based upon examination of the record.”). Certainty is illusory in human

affairs. If certainty about the lack of an error’s effect were required, virtually every

error would mandate reversal, and harmless error would be an endangered if not

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extinct doctrine. Yet the harmless error doctrine is alive and well. It serves vital

interests and promotes public respect for the criminal process. See Neder, 527

U.S. at 18, 119 S. Ct. at 1838; Agurs, 427 U.S. at 108, 96 S. Ct. at 2400; see also

Johnson, 520 U.S. at 470, 117 S. Ct. at 1550.

As the Supreme Court has repeatedly held, the vast majority of

constitutional errors that occur at a criminal trial, including Sixth Amendment

violations, should be examined for prejudicial effect and those errors do not require

reversal if they are harmless. And as we have mentioned, in Fulminante the Court

listed 16 of its decisions establishing this point, a list which refutes Roy’s position

16 times over:

Since this Court’s landmark decision in Chapman v. California,

386 U.S. 18, 87 S. Ct. 824 (1967), in which we adopted the general

rule that a constitutional error does not automatically require reversal

of a conviction, the Court has applied harmless-error analysis to a

wide range of errors and has recognized that most constitutional errors

can be harmless. See, e.g., Clemons v. Mississippi, 494 U.S. 738,

752–54, 110 S. Ct. 1441, 1450–51 (1990) (unconstitutionally

overbroad jury instructions at the sentencing stage of a capital case);

Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792 (1988) (admission

of evidence at the sentencing stage of a capital case in violation of the

Sixth Amendment Counsel Clause); Carella v. California, 491 U.S.

263, 266, 109 S. Ct. 2419, 2421 (1989) (jury instruction containing an

erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497,

501–04, 107 S. Ct. 1918, 1921–23 (1987) (jury instruction misstating

an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S. Ct.

3101 (1986) (jury instruction containing an erroneous rebuttable

presumption); Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142,

2147 (1986) (erroneous exclusion of defendant’s testimony regarding

the circumstances of his confession); Delaware v. Van Arsdall, 475

U.S. 673, 106 S. Ct. 1431 (1986) (restriction on a defendant’s right to

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cross-examine a witness for bias in violation of the Sixth Amendment

Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 115–18 & n.2,

104 S. Ct. 453, 454–55 & n.2 (1983) (denial of a defendant’s right to

be present at trial); United States v. Hasting, 461 U.S. 499, 103 S. Ct.

1974 (1983) (improper comment on defendant’s silence at trial, in

violation of the Fifth Amendment Self-Incrimination Clause); Hopper

v. Evans, 456 U.S. 605, 102 S. Ct. 2049 (1982) (statute improperly

forbidding trial court’s giving a jury instruction on a lesser included

offense in a capital case in violation of the Due Process Clause);

Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088 (1979) (failure to

instruct the jury on the presumption of innocence); Moore v. Illinois,

434 U.S. 220, 232, 98 S. Ct. 458, 466 (1977) (admission of

identification evidence in violation of the Sixth Amendment Counsel

Clause); Brown v. United States, 411 U.S. 223, 231–32, 93 S. Ct.

1565, 1570–71 (1973) (admission of the out-of-court statement of a

nontestifying codefendant in violation of the Sixth Amendment

Counsel Clause); Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174

(1972) (confession obtained in violation of Massiah v. United States,

377 U.S. 201, 84 S. Ct. 1199 (1964)); Chambers v. Maroney, 399 U.S.

42, 52–53, 90 S. Ct. 1975, 1981–82 (1970) (admission of evidence

obtained in violation of the Fourth Amendment); Coleman v.

Alabama, 399 U.S. 1, 10–11, 90 S. Ct. 1999, 2003–04 (1970) (denial

of counsel at a preliminary hearing in violation of the Sixth

Amendment Confrontation Clause).

499 U.S. at 306–07, 111 S. Ct. at 1263 (citations reformatted). There is no good

reason why those 16 types of constitutional violations, some of which involve the

right to counsel, are subject to review for harmless error but the violation in this

case should not be. No less “speculation” is required to determine whether any of

those errors were prejudicial or harmless than is required to make the same

determination about counsel’s momentary absence in this case.

This point is evident from the actual holding in Fulminante itself. The issue

was whether erroneous admission of a coerced confession in violation of the Due

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Process Clause is reviewable for harmless error or should be presumed prejudicial.

Id. at 284–85, 111 S. Ct. at 1251. The Supreme Court recognized that “confessions

have [a] profound impact on the jury, so much so that we may justifiably doubt its

ability to put them out of mind even if told to do so.” Id. at 296, 111 S. Ct. at 1257

(quotation marks omitted). Yet the Court still held that the constitutional error of

admitting a coerced confession is subject to harmless error review. Id. at 303, 111

S. Ct. at 1261. If the erroneous admission of a confession that may have had a

“profound impact on the jury” does not warrant a presumption of prejudice, neither

does the erroneous admission of inculpatory evidence presented during counsel’s

brief absence from the courtroom. See Satterwhite, 486 U.S. at 257, 108 S. Ct. at

1798 (observing that harmless error review is permitted “where the evil caused by

a Sixth Amendment violation is limited to the erroneous admission of particular

evidence at trial”).

E. The Lost Objections, Hampered Cross-Examination,

and Lost Impeachment Arguments

1. Lost Opportunity to Object to Testimony

Roy contends that because of counsel’s seven-minute absence from the

courtroom he lost the opportunity to object to the questions that the prosecutor

asked while he was out of the courtroom, and that we cannot know if counsel

would have objected had he been present, so prejudice must be presumed. The

simple answer to that contention is that counsel did not lose the opportunity to

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object to those questions. He had the opportunity to object to them when he first

heard the same questions asked again immediately after he returned to the

courtroom. Because counsel did not object to any of those questions when he had

that opportunity to object, we know that he had no objection he wanted to make to

them. That proves there was no prejudice from a lost opportunity to object, if

proof is required.

The second independently adequate reason we reject Roy’s contention is that

the most a defendant suffers from a lost opportunity to object is that an objection

that should have been made was not made. That loss does not require a

presumption of prejudice because courts are fully capable of deciding, and

regularly do decide, if an attorney’s failure to object to testimony when he might

have objected is prejudicial or is harmless. There are plenty of reported decisions

doing just that and no decisions that we could find holding that courts are unable to

measure the prejudicial effect of an objection that was not made. See, e.g., Cox v.

McNeil, 638 F.3d 1356, 1364 (11th Cir. 2011) (determining whether counsel’s

failure to object to testimony of expert witness for the prosecution was prejudicial);

Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001) (same); Hays v.

Alabama, 85 F.3d 1492, 1495–96 (11th Cir. 1996) (determining whether counsel’s

failure to object to the introduction of uncharged criminal offenses was

prejudicial); Jones v. Dugger, 928 F.2d 1020, 1023, 1029 (11th Cir. 1991)

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(determining whether counsel’s failure to object to testimony of prosecution

witness was prejudicial); Howard v. Davis, 815 F.2d 1429, 1432 (11th Cir. 1987)

(determining whether counsel’s failure to object to psychiatrist’s testimony was

prejudicial); Cape v. Francis, 741 F.2d 1287, 1300 (11th Cir. 1984) (same).

As those and many other decisions show, there is nothing unusual — or

unusually difficult — about determining whether a failure to object, or a lost

opportunity to object, to testimony was prejudicial or harmless. In this case the

inquiry is particularly easy because the same questions that were asked in

counsel’s absence were repeated in his presence after he returned to the courtroom,

and he made not one objection to any of them.

Faced with all of those decisions in which courts have gauged the prejudicial

effect, if any, of an attorney’s failure to object to testimony, the dissent laments

that: “I am not so sure that a lost opportunity to object is the same thing as the

failure to object –– or so easily quantifiable. It seems to me that a lost opportunity

to object is an altogether different problem, one that requires speculation to

resolve.” Dissenting Op. at 235 n.5. But the dissent never tells us why gauging

prejudice from a lost opportunity to object is “an altogether different problem”

from gauging prejudice from an objection that counsel had an opportunity to make

but did not. The dissent gives no explanation why the difficulty in determining if

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the absence of an objection was prejudicial varies depending on the reason there

was no objection. No explanation is given because none exists.

The harm, if any, caused by the absence of an objection is the same

regardless of whether the reason there was no objection is that counsel was absent,

or he was distracted, or he was just negligent. Regardless of the reason there was

no objection, the jury hears the same testimony and the effect of that testimony is

the same. When it comes to an objection that was not made, prejudice is prejudice

and harmlessness is harmlessness. The ability of courts to gauge the effect of an

objection not being made is the same regardless of why it was not made. Identical

cases, involving identical evidence that was admitted without objection, should be

treated the same regardless of the reason there was no objection, and where the

lack of an objection was harmless the judgment should not be set aside.17

2. Hampered Cross-Examination and

Lost Opportunity to Assert Defenses

17

In support of its position the dissent cites White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050

(1963). That case involved the introduction at trial of the guilty plea that the defendant had

entered during a preliminary hearing without representation of counsel. Id. at 59–60, 83 S. Ct. at

1051. The Supreme Court held that a preliminary hearing where a defendant pleads guilty is a

critical stage of a trial. Id. Roy was not completely denied counsel throughout a critical stage of

the trial, such as a preliminary hearing, and he did not enter a guilty plea while he was without

counsel. Entry of a guilty plea by the defendant is not equivalent to the absence of an objection

to testimony. Cf. Florida v. Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 560 (2004) (“A guilty

plea . . . is an event of signal significance in a criminal proceeding.”) (citation omitted).

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Roy also contends that we must presume prejudice because his counsel’s

absence during seven minutes of Deputy Longson’s testimony may have hampered

counsel’s cross-examination, or may have caused counsel not to assert some

defense, or may have prevented counsel from presenting some evidence to rebut

the testimony that came in during those seven minutes. But courts regularly assess

whether a defendant has suffered prejudice from foregone cross-examination,

foregone defenses, and foregone evidence. See, e.g., Hinton v. Alabama, 571 U.S.

___, 134 S. Ct. 1081, 1088–90 (2014) (remanding for the district court to

determine whether petitioner was prejudiced by counsel’s failure to request

additional funding in order to hire an adequate expert); Harrington v. Richter, 562

U.S. 86, 110–12, 131 S. Ct. 770, 790–92 (2011) (determining whether petitioner

was prejudiced by counsel’s failure to present expert testimony on serology,

pathology, and blood spatter patterns); Roberts v. Comm’r, Ala. Dep’t of Corr.,

677 F.3d 1086, 1090–94 (11th Cir. 2012) (determining whether defendant suffered

prejudice from his attorney’s failure to raise insanity defense); Pietri v. Fla. Dep’t

of Corr., 641 F.3d 1276, 1280–84 (11th Cir. 2011) (determining whether defendant

suffered prejudice from his attorneys’ failure to raise voluntary intoxication

defense); Jackson v. Herring, 42 F.3d 1350, 1362, 1368–69 (11th Cir. 1995)

(determining whether petitioner was prejudiced by counsel’s failure to investigate

and present mitigating evidence at sentencing).

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This kind of prejudice inquiry is old hat for courts. We do it often, without

protesting that it is too difficult or too much trouble. It is part of our judicial duty.

And again, it is simple to do in this case because the same questions counsel

missed were repeated after he came back into the courtroom. We know what

objections he wanted to make to those questions from the objections he made to

them when they were asked in his presence: none.

3. Lost Opportunity to Impeach

Roy also complains that because of counsel’s brief absence from the

courtroom he did not hear Deputy Longson mistakenly testify that the images of

L.B. were taken on March 10, 2005 instead of March 11, 2006. As we point out

elsewhere, the difference is immaterial because L.B. was a minor (under 18 years

of age) on both dates (she was 15 years old on the earlier date and 16 years old on

the later date). See supra at 7 n.1; infra at 111–113. And there was a mountain of

other evidence proving beyond a reasonable doubt Roy’s guilt of the charges to

which those images of L.B. related. See infra at 112–113.

Roy does not dispute that the victim was a minor regardless of which date

for that particular file is used, but instead argues that if counsel had been present

and had heard Longson’s slip up about the date, he could have used that mistake in

an attempt to impeach Longson’s testimony; and because he lost the opportunity to

impeach, prejudice should be irrebuttably presumed. The problem for Roy is that

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courts are fully capable of deciding, and regularly do decide, if an attorney’s

failure to impeach a prosecution witness with prior inconsistent testimony or other

evidence is prejudicial or harmless. There are legions of decisions doing just that.

See, e.g., Strickler v. Greene, 527 U.S. 263, 289–96, 119 S. Ct. 1936, 1952–55

(1999) (determining that petitioner was not prejudiced by loss of opportunity to use

withheld documents to impeach a key prosecution witness); Barwick v. Sec’y, Fla.

Dep’t of Corr., 794 F.3d 1239, 1251–53 (11th Cir. 2015) (denying habeas relief in

a capital case because the petitioner had not shown prejudice from his counsel’s

failure to use a prosecution witness’ prior inconsistent testimony in another

proceeding to impeach her); Fugate v. Head, 261 F.3d 1206, 1208, 1220 (11th Cir.

2001) (determining that petitioner had not shown prejudice from his attorney’s

failure to impeach the testimony of the sole eyewitness to the murder with his prior

inconsistent statement to police); Nixon v. Newsome, 888 F.2d 112, 116–17 (11th

Cir. 1989) (determining, after “[c]onsidering all the circumstances,” that petitioner

had been prejudiced by his counsel’s failure to impeach the key prosecution

witness with her prior inconsistent testimony); Jones v. Butler, 778 F.3d 575, 584–

86 (7th Cir. 2015) (denying habeas relief on a claim involving counsel’s failure to

impeach the testimony of a prosecution witness because “[w]e cannot say that [the

witness’] testimony would have altered the outcome even if the impeachment had

been perfected”); United States v. Travillion, 759 F.3d 281, 290–93, 299 (3d Cir.

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2014) (denying relief on a claim involving counsel’s failure to use a prosecution

witness’ contradictory statements from an earlier trial to impeach him because the

collective evidence against the petitioner showed he was not prejudiced by that

failure, and observing that “[t]he right to a fair trial does not translate into the right

to a perfect trial”); United States v. Orr, 636 F.3d 944, 951–54 (8th Cir. 2011)

(denying relief on a claim involving counsel’s failure to impeach a prosecution

witness with her cooperation agreement and her prior inconsistent statements

because, even though counsel could have “eroded [her] credibility in the jury’s

eyes by impeaching [her],” in view of the other evidence of guilt “there is not a

reasonable probability that [the] impeachment would have manufactured

reasonable doubt in the jurors’ minds”); Moore v. Marr, 254 F.3d 1235, 1237–38,

1240–41 (10th Cir. 2001) (denying habeas relief on claim involving “counsel’s

failure to impeach a key prosecution witness” because even if “[the witness] had

been impeached we cannot conclude that the outcome would have been different”).

All of those decisions, and more like them, foreclose Roy’s argument that

prejudice should be presumed on the theory that courts are not capable of

determining whether the failure to use a particular piece of evidence to impeach

was prejudicial or instead was harmless. Courts can and do make that

determination if a failure to impeach resulted from counsel error. Yet the dissent

worries that courts are somehow not capable of making exactly the same

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determination if the failure to impeach occurred because counsel was unaware of

the testimony or other evidence that could have been used to impeach. See

Dissenting Op. at 235 & n.5 (“Lost opportunities matter. . . . And further, here, it

was a lost opportunity to impeach –– the effects of which could have pervaded the

witness’s entire testimony.”).

The dissent never explains why the reason that impeachment did not occur

matters in gauging the prejudicial effect, if any, of the unused impeachment. What

we said earlier about why a failure to object does not affect a court’s ability to

gauge prejudice applies with equal force to a failure to impeach. Because the

impeachment evidence the jury does not hear is the same regardless of the reason it

does not hear that evidence, the effect of the jury not hearing that evidence is the

same. It follows that the court’s ability to gauge the effect of the jury not hearing

impeachment evidence is the same as well. What matters is the prejudicial or

harmless effect of the lack of impeachment, and all of the decisions we have just

cited establish that courts are fully capable of gauging that effect and regularly do

so.

Faced with all of those decisions, the dissent simply disagrees, insisting that

“[l]ost opportunities matter,” and are all that matter, when it comes to a failure to

impeach, and if impeachment does not occur because of a lost opportunity –– as

distinguished from an opportunity that counsel had but failed to take advantage

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of –– prejudice cannot be measured and must be presumed. See Dissenting Op. at

230, 234–240. The distinction the dissent would have us make has no logical

basis, which coincides with the fact that it is foreclosed by at least three decades of

binding precedent.

The Supreme Court and this Court have repeatedly held that when the

government suppresses impeachment evidence depriving the defense of the

opportunity to impeach a prosecution witness, prejudice is not to be presumed but

must be shown by the defendant. See, e.g., United States v. Bagley, 473 U.S. 667,

105 S. Ct. 3375 (1985). There is a different standard when the government

deliberately uses, or fails to correct, perjury that deprives the defendant of the

opportunity to use impeachment evidence, but even then there is no automatic

reversal and the harmless error rule applies. See Agurs, 427 U.S. at 103–04, 96

S. Ct. at 2397.

In the Bagley case the government had given the defense affidavits from its

“two principal witnesses” attesting that they had not been given any rewards or

promises of reward.18 Id. at 670, 105 S. Ct. at 3377. Even though the defense

18

Actually, as the dissenting opinion in Bagley points out, those “two principal witnesses”

were the only witnesses against the defendant on the charges for which he was convicted. 473

U.S. at 685, 105 S. Ct. at 3385 (Marshall, J., joined by Brennan, J., dissenting); see also Bagley

v. Lumpkin, 798 F.2d 1297, 1299 (9th Cir. 1986) (“At trial [those two witnesses] provided the

only testimony on the controlled substance charges.”); Bagley, 473 U.S. at 671, 105 S. Ct. at

3377 (noting that the controlled substances charges were the only ones on which the defendant

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asked for information about any deals, promises, or inducements, the government

did not disclose that it had signed a “Contract for Purchase of Information and

Payment of Lump Sum Therefor” with the two witnesses. Id. at 669–71, 105 S. Ct.

at 3377–78. It had promised to pay the two witnesses as “vendors” an amount

described in the contract as “a sum commensurate with services and information

provided,” and they expected to be paid and were paid. Id. at 671–72, 105 S. Ct. at

3377–78. The government’s failure to disclose that evidence to the defense

deprived it of the opportunity to impeach the two government witnesses by

showing their bias or interest. Id. at 676, 105 S. Ct. at 3380.

The Ninth Circuit set aside the conviction, holding that: “the government’s

failure to provide requested Brady information to Bagley so that he could

effectively cross-examine two important government witnesses requires an

automatic reversal.” Id. at 674, 105 S. Ct. at 3379 (quoting Bagley v. Lumpkin,

719 F.2d 1462, 1464 (9th Cir. 1983)). The Supreme Court rejected the Ninth

Circuit’s automatic reversal rule and reversed its judgment. In doing so, the Court

acknowledged that impeachment evidence is covered by the Brady rule because it

is evidence favorable to the accused that “if disclosed and used effectively . . . may

was convicted). And there was no evidence to corroborate the testimony of those two witnesses.

Lumpkin, 798 F.2d at 1299 n.1.

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make the difference between conviction and acquittal.” Id. at 676, 105 S. Ct. at

3380. And the Court recognized that the “possibility of a reward gave [the two

witnesses] a direct, personal stake in [Bagley’s] conviction.” Id. at 683, 105 S. Ct.

at 3384. Not only that but, as the Court pointed out, “the natural effect” of the

affidavits that the government did give the defense “would be misleadingly to

induce defense counsel to believe that [the two witnesses] provided the information

in the affidavits, and ultimately their testimony at trial recounting the same

information, without any ‘inducements.’” Id. at 684, 105 S. Ct. at 3384.

Even with all of that in the case, the Supreme Court rejected an automatic

reversal rule. It held, instead, that when the government deprives a defendant of

the opportunity to impeach a witness by a misleading failure to disclose evidence

that could have been used for that purpose, the conviction is to be set aside “only if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”

Id. at 682, 105 S. Ct. at 3383 (borrowing the Strickland prejudice standard). The

requirement of prejudice, the Court explained, is “[c]onsistent with our overriding

concern with the justice of the finding of guilt.” Id. at 678, 682, 105 S. Ct. at 3381,

3383 (quotation marks omitted).

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The Bagley rule is still in full force and effect. Its requirement t

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