good morning your honors and may please the court tim scott for the appellant mr south carolina the first issue i'd like to address is the right to be present during all proceedings and whether the jury selection process in this case violated that right both outside the presence of the defendant did cost it to a rule forty three statutory violation although on the facts of that case did not give rise to a constitutional violation using the framework that raises present our argument is that the facts of our case go beyond that factual matrix and do establish both a rule forty three and a sixth amendment and fifth amendment constitutional violation the facts that in our view are distinguish able is that in re is as i said there was one brief conference outside the presence of the defendant in the court reasoned and held i believe that there is no reason to think that that one conference couldn't have been shared  with the defendant between attorney and defendant once the attorney was able to confer with the defendant so do you have to do is that is that your position that you have to show prejudice the argument is that it would be a cumulative showing  prejudice is that structural errors that we're saying cumulatively cumulus lewdly its structural error now i would be the first to concede that because of the nature of this violation i can't stand here and say that a hypothetical different juror would have voted differently and i don't think any criminal the senate would be able to make that showing if that is in fact the rule i mean it would just be an exercise in speculation to say what some person who didn't make it on the jury would have thought of the evidence i don't think i've ever heard of cumulative structural error it's a creative creep statement not exactly sure what it means because it's obvious in race that we're thinking about the constitutional violation but it's not structural but it doesn't appear to be structural or it appears that you have some obligation to show some kind of some kind of prejudice it and i didn't mean to get cute in terms of coining a new phrase i guess what i mean to say is that the substantial rights of the defendant were in fact violated and what i'm saying is that that's a little bit different than than showing a specific any prejudice or the or the being able to demonstrate definitively that the conviction would have come out differently or the jury verdict would have come out differently i guess what i'm saying is that by it did it does undermine the basic framework  the proceedings that that it did frustrate his ability to participate in the fairness and that that is a little bit different kind of prejudice but it is a prejudice that's recognized under the law but in this case is in process th district court used in order to go through the jury selection was one that was agreed to by the parties was it not well i think it was characterized in the government's brief is something that the defense or advocated for or specifically agreed to i think if we look at the record the court said we're going to do it a sidebar in the defendant's admittedly did not object to that and did make a comment that if there are people who make it into the box who have had complaints on the jury form than done i'm going to want to question them a sidebar as well but it's it's not the same thing as saying that the defendant advocated for the side bar but when there is your but there's never an objection to the process that's true well i would say that's true as far as it goes when we're talking about the overall process and then i guess the question becomes is that tantamount to a knowing and voluntary waiver by the defendant himself and why wouldn't it be well because a knowing intelligent voluntary waiver requires much more than acquiescence if you can't simply be that not not just the defense attorney but also the defendant sit silently while while a violation of constitutional rights occur there needs to be an explicit advise all of what the right is what you're giving up i mean i think that's more consistent with our traditional notions of of completely waiving something now if it's plain air or you know that's a different matter and i'm prepared to try to argue why we think we can meet that under the circumstance want to be precise now so you've argued rule forty three which is the right is the statutory right to be present as you also mentioned the fifth amendment which appears to be a due process right to be present yes sixth amendment seems to go to a public trial  which would be we wouldn't be the defendants alone you certainly have standing to raise it but it's not it's not his right alone it could also be raised presumably by the by the public it looks to me like the sixth amendment error is one that we have the have said it is structural error so if it changes it changes the burden that maybe the maybe on you but it's also a little hard to see that the court hasn't yet that the that it may not be structural so is it structural is it not structural and if so what happens here for the sixth amendment certainly to structural if this court were to hold that by conducting not just a subset of or dear but also the preemptory strike process and then also declining a request to finalize the jury so is this the equivalent of closing the courtroom we would say this yes in what way is a closing the courtroom in the sense that the side bar by definition is  cloistered or sheltered from the people who are watching it in this case from the defendant as well and from the public now granted there is a transcript but there was also a transcript in the lead supreme court case  case where someone was excluded physically so it's the physical and out of earshot exclusion from these ports these portions of the trial that we would argue do amount to a to a public closure now where he's going to argue this departs from ray is is that really is was the one instance outside of that your shot of the bennett and enough time presumably for the attorney to share that information with the defendant here we had at least for such subset of conversations with jurors about their ability and their fitness to serve their ability to be fair that spans a total of sixteen pages of transcript each of those conversations and i think it's sort of stretches belief to suggest that  those sixteen pages a transcript could have been sort of downloaded in presented to the defendant in the brief conferences that they did have where i think it came to a head though is where at the end of the process when it first the defendant or the fence attorney which is i think an important distinction in these facts did pass but then confusion ensued in terms of what was the actual jury panel and it was crystal clear that it was not crystal clear to anyone what was going on at that moment of the trial the jury clerk started to read names and quite plainly read a name and i believe this is that you are five thirty seven that nobody had stricken and so then the court said wait wait wait in and there was some kind of cross talk in terms of who was stricken and so it was it was pretty plain that in terms of both the government the defense and the clerk of the court there was disagreement about who composed that jury it didn't seem to me that that statement that you just made is necessarily true i just think that what happened was the clerk met in there everybody seemed to agree that no that individual whose name you just read was not one of the ones who was stricken but there wasn't any disagreement over anyone else wasn't well then the then the defense attorney said well we need you now we need more we need more people well i think she was saying wait a minute i've struck i've struck seven people you four names or something like that but they're not that confusing got dispelled with that so i mean i think your counterpart at the trial court level didn't suggest that she was the best and most meticulous note take perhaps and there could have been some confusion on her part but i'm not sure that that was the district court's fault i mean she should have been more on top of it in terms of figuring out ok well these people are in the box but i know that these jurors are up next and i don't know i don't see any problem there well let's let's assume that that's true for the sake of argument let's assume that the that the trial attorney was it was challenge or perhaps wasn't the best known taker that strikes me as it is a prototypical example of why it is important for the defendant in that case to be able to participate in i would argue that's what elevates it to the level of a constitutional issue now it's a mind you talking about during the sidebars to question individual jurors during the questioning of individual jurors and then during the selection process is self but going through the lawyer was allowed to confer with him before he strikes she conferred sometimes but not always but i do think it comes i do think that ultimately when she makes a very explicit request can we look at who's in the box and then consult with the client before finalizing it i think that's what sort of pushes it over the goal line in terms of a constitutional by that at that point the jury was already figured out at that point that the judge said this this is our panel we're done no further challenges everybody agreed she walked back and then asked the question can we look at the panel and the judge said not necessary we've overcome the jury is set yeah well one of the factors in a is and the other cases that saved side are procedures for constitutional violation is the fact that the strikes were called out in open court and then finalized in front of the defendant in an open court and i think that is a distinguishing factor because when she explicitly asked to do that she was rebuffed and i guess the question in my mind is what's the harm what let's assume that the court you know could've been irritated and said well you should've said that earlier but but ok fine you can do that let's say that she makes another strike then it goes back to the government to make their other strike into it so it that's why and in our view it does rise to the level of sort of a use it in lose it use it or lose it approach just because she said the magic words pass before finalising with her client and then not having the opportunity even though she asked to finalize it with her client the fact that those things didn't occur i think does both violate  the yep as in turner case in terms of losing strikes as well as what saved this kind of procedure from constitutional violation previously i see i've got about three  asked you a very specific factual question you didn't start with the language difficulties that some of the prospective jurors had but i had just one question about journal or seven who was the seem to be the most challenged yes do you agree that that juror was in fact never seated  with your seven was seated ok i don't think that's true but i'll ask the government i'll have to go back and double check that my understanding was that the four that we raised were each ones that were seated and if i'm wrong i'm wrong but i don't know i just that's why i want to ask both of you i because she did ask to consult with the client and because the government advised the district court we don't need to do this at sidebar but those are the two things i can point to to argue that the courts wasn't i'll just say but from counsel that at some point and say my client's be denied a public trial that's true that's true so you can't close the courtroom or it's right side bar closes the courtroom ok so if you were here on plane air or what do we do with that weaver case as the supreme court's two thousand and seventeen case was up on on ineffective assistance of counsel and even though the court said yeah it's structural error if you object but we're not going to let you play the structural error game if you're up here on a strickland play if you're here on plane air or that seems to fall someplace between structural error and we're not going to let you do that on ineffective assistance of counsel what do we do with it right well the first thing i would do it is just argue that it's not plane or for the two reasons that i just described what it was the next best theory then the next best theory is that weave good morning and may it please the court sarah milstein for the united states in this appeal the defendant asks to overturn the jury's verdict because of perceived procedural problems and phantom constitutional violations but what actually happened to trial as it is playing for the court to read from the record shows why this court doesn't need to overturn the jury's verdict or second guess the district court's discretion which the court used wisely and defendant effectively concedes as much because the defendant never has never claimed that the composition of the jury was improper or caused him any specific harm or lead to any particular bad result and perhaps most problematic and fatal to the defendant's appeal is that the defendant never asserts that he would have done anything differently could if he were to go back in time and change anything with the benefit of hindsight and so the defendant makes five arguments on appeal and they generally fall into three categories first the defendant finds fault with the court process which in which no plain air actually occurred the court the defendant finds fault in the court's decision not to excuse one juror for cause after doing a colloquy with that juror and making clear that the defense had the ability to strike that juror with any number of the  and so here where there has been no true injury beyond sort of the academic or theoretical it would be the reverse of all of the defendant's convictions not the failure of the court to notice them despite defend been a challenge to her and she had been allowed to to serve i would have had some serious misgivings about affirming but that juror i can't remember her name but the the one who was originally named  folks that your opponent challenge and the brief you're brief didn't say that that person never in fact served it looked to us as though and at the end of the day for whatever reason she just was not back for day two and therefore some other juror was seated  seat number seven so get out if it would give me a lot of comfort if i knew that that juror who as i said had some serious language difficulties it seemed to me actually never was allowed to serve and you just said you're confident that she didn't and i'm just asking why  well the reason i was her confidence because i had the specific memory of what is in the book next to me and to my left that a juror by the initials a and was seated in seat seven and that is not the scene initials of the juror who the court were not actually perceived by the quarter either council when they were physically perceiving that gerrard able to understand his or her cadence difficulty or not difficulty in selecting english words and so you know  record itself doesn't necessarily reveal what was present and perceivable by the people who were there and this court and supreme court's precedent has sort of given great deference to the perceptions of the folks who were there which in this case with the trial court  and the and the lawyers and the defense counsel of course didn't object to that juror specifically on language grounds it is clear from the way the defense used his peremptory strikes that the primary issue was the sensitive topic of child pornography that was the focus of this trial the fairness of the jury and their ability to decide to fend in that the defendant's guilt or not guilt based on the record before it not any language issues twelve shows that the defendant because the define it was able to perceive the side bar of what your conference is he if he waived his right to be present at those sidebar conferences because this is unlike when the defendant counsel was present he was able to confer with his counsel each time and so as a factual matter he wasn't deprived of the ability of participating instead how do you been present his presence would have been sort of but a shadow as the brief discussions about legal matters that sidebar don't constitute a closure of a game you know if they were just if they were if there were discussions over the federal rules of evidence that might be different but when you're interviewing jurors that has a very different feel to it i understand your honor but i think the fact that the defendant has never raised this never raised a trial never raised in the years including so that gets to the second problem which is is this structural error or is it structural error after weaver and this case feels like it feel like it falls between presley and weaver yes your honor you know i'd be happy to submit something in writing in the next few days if the court prefer me to you know the government officially opine on weaver and presley but i think at this the judge and that simply does not a closure make ok thank you so thank you both for your for your argument very articulate and we appreciate the assistance the case is committed