NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3403

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UNITED STATES OF AMERICA,

Appellant

v.

SEAN DAVID WOODSON

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On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-09-cr-00117-001)

District Judge: Honorable Sue L. Robinson

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Submitted Pursuant to Third Circuit LAR 34.1(a)

November 16, 2012

Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

(Filed: January 4, 2013)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

The United States appeals the District Court’s order granting Sean Woodson’s 

motion for a new trial. For the reasons stated below, we will affirm.
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I.

We write principally for the parties, who are familiar with the factual context and 

legal history of the case. Therefore, we will set forth only those facts necessary to our 

analysis.

In the spring of 2009, Delaware Probation and Parole Officer Brian Payton was 

assigned to supervise Sean Woodson during his term of probation. While preparing for 

Woodson’s monthly visit to the probation office, Payton searched a national computer 

database and discovered that there was an active warrant for Woodson’s arrest issued by 

the State of Maryland. When Woodson arrived at the office on October 9, 2009, Payton 

immediately took him into custody on the basis of the warrant. In following standard 

police procedure, Payton conducted a pat-down search of Woodson to check for 

weapons. Upon finding several loose pills of Percocet, a controlled substance for which 

Woodson had not reported a prescription, and after conferring with his supervisor, Payton 

searched Woodson’s vehicle for additional contraband. In a safe in the trunk of 

Woodson’s truck, Payton found, among other things, a loaded .357 revolver.

Woodson was indicted by a grand jury on December 10, 2009 for being a felon in 

possession of a firearm affecting interstate commerce, in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(e). Woodson proceeded pro se with standby counsel assigned. At 

the close of trial on January 6, 2011, the District Court properly instructed the jury that 

the single count of the crime had three elements, all of which must be proven to return a 
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conviction. Less than two hours after breaking for deliberations, the jury sent the Court

the following written question: “The charges on Page 18 have to apply for all or just 

one?” Without conferring with either party, the District Court responded in writing:

“I’m sorry – I don’t understand the question. There is only one count – with three 

elements.” The jury then replied in a note stating, “Okay. We Understand. See you 

tomorrow.” The District Court then informed the jury, “I might want to make sure we’re 

all on the same page by another note tomorrow. Safe drive tonight and tomorrow.”

Later that afternoon, the parties appeared before the District Court and were 

advised that the Court had received a question from the jury. At this time, Woodson’s 

standby counsel objected to the District Court answering jury questions without his client 

being told about the questions or being consulted. The District Court explained that its 

responses were only for the sake of clarification. After additional deliberations, the jury 

returned a verdict of guilty. Woodson filed a motion pro se requesting a new trial under

Rule 33 of the Federal Rules of Criminal Procedure, arguing that the District Court erred 

by responding to the jury’s message out of the presence of himself and his standby 

counsel.

On August 5, 2011, the District Court granted Woodson’s motion for a new trial. 

The District Court explained that under Rule 43 of the Federal Rules of Criminal 

Procedure, the Confrontation Clause of the Sixth Amendment, and the Due Process 

Clause of the Fifth Amendment, a jury’s message must be answered in open court and 
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defense counsel must be given an opportunity to be heard before the trial judge responds. 

The District Court also determined that it could not conclude beyond a reasonable doubt 

that the defendant was uninjured by this error. On August 31, 2011, the government 

timely filed a notice of cross-appeal from the order granting a new trial.1

II.

The District Court exercised jurisdiction over this criminal case pursuant to 18 

U.S.C. § 3231. We have jurisdiction over an appeal from an order granting a motion for 

a new trial pursuant to 18 U.S.C. § 3731.2

The government raises one argument on appeal: that the District Court committed 

a harmless error by not answering the jury’s question in open court and therefore 

erroneously granted Woodson a new trial. We review a district court’s decision to grant a 

new trial for an abuse of discretion. United States v. Kelly, 539 F.3d 172, 181 (3d Cir. 

2008).

 1 When the government filed its notice of cross-appeal, Woodson was the 

appellant, having filed a notice of appeal from the District Court’s order denying his 

motion for acquittal. On January 11, 2012, we dismissed Woodson’s appeal. The 

government is now the appellant in the matter before us.

2 Woodson argues that we lack jurisdiction because an order for a new trial in a 

criminal case is not appealable before a retrial occurs. Woodson’s argument, however, 

rests on the state of the law as it existed nearly thirty years ago. In 1984, Congress 

amended 18 U.S.C. § 3731 to permit government appeals from orders “granting a new 

trial after verdict or judgment.” Comprehensive Crime Control Act of 1984, Pub. L. No. 

98-473, Title II, § 1206, 98 Stat. 2153 (1984); see also United States v. Cimera, 459 F.3d 

452, 458 (3d Cir. 2006); Gov’t of V.I. v. Mills, 935 F.2d 591, 594-95 (3d Cir. 1991).
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III.

A district court may grant a new trial when “the interest of justice so requires.” 

Fed. R. Crim. P. 33(a). Rule 43(a) of the Federal Rules of Criminal Procedure mandates 

that a defendant be present at “every trial stage, including jury impanelment and the 

return of the verdict.” This rule is grounded in the Confrontation Clause of the Sixth 

Amendment and the Due Process Clause of the Fifth Amendment. United States v. 

Toliver, 330 F.3d 607, 611 (3d Cir. 2003). The harmless error standard applies to 

violations of Rule 43. Toliver, 330 F.3d at 612. For a violation of the defendant’s 

constitutional rights to be deemed harmless, the “government must prove beyond a 

reasonable doubt that the defendant was uninjured by the error.” Id.

The District Court did not abuse its discretion when it held that it could not find 

beyond a reasonable doubt that Woodson was uninjured by its instruction. It is possible 

that the instruction could have, in some manner, affected the jury’s decision-making. Not 

only was the jury’s question asked during deliberations, but it also dealt solely with the 

jury’s requirements to find a conviction. Both of these factors increase the likelihood that 

the District Court’s responses affected the judgment rendered by the jury. Furthermore, 

given the confusion demonstrated by the jury’s original inquiry, it is possible that the 

District Court’s response did in fact affect the deliberations. The harmless error standard

was not met in this case and we therefore find no abuse of discretion in the District 

Court’s ruling.
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IV.

For the foregoing reasons, we will affirm the decision of the District Court to grant 

a new trial.