# United States v. Alexander Michael Roy > Court of Appeals for the Eleventh Circuit · April 26, 2017 · 855 F.3d 1133 URL: https://www.frixlaw.com/law-library/cases/4163483 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Alexander Michael ROY, Defendant-Appellant - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** April 26, 2017 - **Citations:** 855 F.3d 1133; 2017 U.S. App. LEXIS 7354; 2017 WL 1488331 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Carnes, Tjoflat, Hull, Marcus, Wilson, Pryor, Martin, Jordan, Rosenbaum - **Nature of suit:** ENB - **Cited by:** 63 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4163483 ## How later opinions describe it (automated extraction) - explaining that refusing to presume prejudice from a constitutional error is "the rule, not the exception,” and noting that the Supreme Court has recognized seventeen types of constitutional error that do not warrant a presumption of prejudice - noting that "the Supreme Court has repeatedly refused to find [Cronic ] applicable" and "[o]nly once in the 30 years since the Cronic decision was issued has the Supreme Court applied Cronic to presume prejudice" (citing Penson v. Ohio , 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.E… - noting that “the Supreme Court has repeatedly refused to find [Cronic] applicable” and “[o]nly once in the 30 years since the Cronic decision was issued has the Supreme Court applied Cronic to presume prejudice” (citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (applying the pres… - explaining that crit- ical stages “of a criminal proceeding where the defendant has a right to counsel” include “an arraignment, . . . a preliminary hear- ing, [and] a plea hearing” - noting that “[t]he Supreme Court has never held that the absence of counsel for part, but not all, of a critical stage of trial does not constitute structural error” and that Cronic speaks of the absence of counsel not “throughout” but “at a critical stage” ## Opinion text Case: 12-15093 Date Filed: 04/26/2017 Page: 1 of 281 [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. Case: 12-15093 Date Filed: 04/26/2017 Page: 2 of 281 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. 2 Case: 12-15093 Date Filed: 04/26/2017 Page: 3 of 281 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 3 Case: 12-15093 Date Filed: 04/26/2017 Page: 4 of 281 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 4 Case: 12-15093 Date Filed: 04/26/2017 Page: 5 of 281 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) 5 Case: 12-15093 Date Filed: 04/26/2017 Page: 6 of 281 (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 6 Case: 12-15093 Date Filed: 04/26/2017 Page: 7 of 281 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 7 Case: 12-15093 Date Filed: 04/26/2017 Page: 8 of 281 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. 8 Case: 12-15093 Date Filed: 04/26/2017 Page: 9 of 281 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 9 Case: 12-15093 Date Filed: 04/26/2017 Page: 10 of 281 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” 10 Case: 12-15093 Date Filed: 04/26/2017 Page: 11 of 281 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 11 Case: 12-15093 Date Filed: 04/26/2017 Page: 12 of 281 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. 12 Case: 12-15093 Date Filed: 04/26/2017 Page: 13 of 281 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. 13 Case: 12-15093 Date Filed: 04/26/2017 Page: 14 of 281 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. 14 Case: 12-15093 Date Filed: 04/26/2017 Page: 15 of 281 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 15 Case: 12-15093 Date Filed: 04/26/2017 Page: 16 of 281 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. 16 Case: 12-15093 Date Filed: 04/26/2017 Page: 17 of 281 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. 17 Case: 12-15093 Date Filed: 04/26/2017 Page: 18 of 281 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 18 Case: 12-15093 Date Filed: 04/26/2017 Page: 19 of 281 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. 19 Case: 12-15093 Date Filed: 04/26/2017 Page: 20 of 281 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 20 Case: 12-15093 Date Filed: 04/26/2017 Page: 21 of 281 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. 21 Case: 12-15093 Date Filed: 04/26/2017 Page: 22 of 281 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 22 Case: 12-15093 Date Filed: 04/26/2017 Page: 23 of 281 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 23 Case: 12-15093 Date Filed: 04/26/2017 Page: 24 of 281 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 24 Case: 12-15093 Date Filed: 04/26/2017 Page: 25 of 281 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. 25 Case: 12-15093 Date Filed: 04/26/2017 Page: 26 of 281 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 26 Case: 12-15093 Date Filed: 04/26/2017 Page: 27 of 281 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 27 Case: 12-15093 Date Filed: 04/26/2017 Page: 28 of 281 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.”). 28 Case: 12-15093 Date Filed: 04/26/2017 Page: 29 of 281 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 29 Case: 12-15093 Date Filed: 04/26/2017 Page: 30 of 281 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. 30 Case: 12-15093 Date Filed: 04/26/2017 Page: 31 of 281 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. 31 Case: 12-15093 Date Filed: 04/26/2017 Page: 32 of 281 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 32 Case: 12-15093 Date Filed: 04/26/2017 Page: 33 of 281 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). 33 Case: 12-15093 Date Filed: 04/26/2017 Page: 34 of 281 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 34 Case: 12-15093 Date Filed: 04/26/2017 Page: 35 of 281 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 35 Case: 12-15093 Date Filed: 04/26/2017 Page: 36 of 281 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). 36 Case: 12-15093 Date Filed: 04/26/2017 Page: 37 of 281 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 — 37 Case: 12-15093 Date Filed: 04/26/2017 Page: 38 of 281 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, 38 Case: 12-15093 Date Filed: 04/26/2017 Page: 39 of 281 126 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 39 Case: 12-15093 Date Filed: 04/26/2017 Page: 40 of 281 150–51, 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. 40 Case: 12-15093 Date Filed: 04/26/2017 Page: 41 of 281 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. 41 Case: 12-15093 Date Filed: 04/26/2017 Page: 42 of 281 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 42 Case: 12-15093 Date Filed: 04/26/2017 Page: 43 of 281 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 43 Case: 12-15093 Date Filed: 04/26/2017 Page: 44 of 281 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 44 Case: 12-15093 Date Filed: 04/26/2017 Page: 45 of 281 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 45 Case: 12-15093 Date Filed: 04/26/2017 Page: 46 of 281 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 46 Case: 12-15093 Date Filed: 04/26/2017 Page: 47 of 281 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. 47 Case: 12-15093 Date Filed: 04/26/2017 Page: 48 of 281 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 48 Case: 12-15093 Date Filed: 04/26/2017 Page: 49 of 281 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 49 Case: 12-15093 Date Filed: 04/26/2017 Page: 50 of 281 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 50 Case: 12-15093 Date Filed: 04/26/2017 Page: 51 of 281 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, 51 Case: 12-15093 Date Filed: 04/26/2017 Page: 52 of 281 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. 52 Case: 12-15093 Date Filed: 04/26/2017 Page: 53 of 281 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 53 Case: 12-15093 Date Filed: 04/26/2017 Page: 54 of 281 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) 54 Case: 12-15093 Date Filed: 04/26/2017 Page: 55 of 281 (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 55 Case: 12-15093 Date Filed: 04/26/2017 Page: 56 of 281 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. 56 Case: 12-15093 Date Filed: 04/26/2017 Page: 57 of 281 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 57 Case: 12-15093 Date Filed: 04/26/2017 Page: 58 of 281 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. 58 Case: 12-15093 Date Filed: 04/26/2017 Page: 59 of 281 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 59 Case: 12-15093 Date Filed: 04/26/2017 Page: 60 of 281 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 60 Case: 12-15093 Date Filed: 04/26/2017 Page: 61 of 281 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 61 Case: 12-15093 Date Filed: 04/26/2017 Page: 62 of 281 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 62 Case: 12-15093 Date Filed: 04/26/2017 Page: 63 of 281 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 63 Case: 12-15093 Date Filed: 04/26/2017 Page: 64 of 281 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 64 Case: 12-15093 Date Filed: 04/26/2017 Page: 65 of 281 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 65 Case: 12-15093 Date Filed: 04/26/2017 Page: 66 of 281 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. 66 Case: 12-15093 Date Filed: 04/26/2017 Page: 67 of 281 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. 67 Case: 12-15093 Date Filed: 04/26/2017 Page: 68 of 281 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 68 Case: 12-15093 Date Filed: 04/26/2017 Page: 69 of 281 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. 69 Case: 12-15093 Date Filed: 04/26/2017 Page: 70 of 281 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 70 Case: 12-15093 Date Filed: 04/26/2017 Page: 71 of 281 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. 71 Case: 12-15093 Date Filed: 04/26/2017 Page: 72 of 281 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 72 Case: 12-15093 Date Filed: 04/26/2017 Page: 73 of 281 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4163483. Public record. Not legal advice.