*

The Honorable Amul R. Thapar, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0118p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

MARSHALL WILLIAMS,

 Defendant-Appellant.

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No. 09-5256

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 08-20161-001—Bernice B. Donald, District Judge.

Decided and Filed: May 11, 2011 

Before: MARTIN and STRANCH, Circuit Judges; THAPAR, District Judge.*

_________________

COUNSEL

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. Anne-Marie

Svolto, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for

Appellee. Marshall DeWayne Williams, Inez, Kentucky, pro se. 

MARTIN, J., delivered the opinion of the court, in which STRANCH, J., and

THAPAR, D. J., joined. THAPAR, D. J. (pp. 16–21), delivered a separate concurring

opinion.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. While serving a sentence for planting

a pipe-bomb in a newspaper vending machine that exploded and killed his stepfather,

Marshall Williams mailed a letter containing a white substance purported to be anthrax

1
No. 09-5256 United States v. Williams Page 2

to the district court judge who denied his habeas corpus petition. Williams proceeded

pro se at trial, and a jury convicted him of mailing a threatening communication to a

federal judge in violation of 18 U.S.C. § 876(c). The district court proceeded to sentence

Williams without first obtaining a presentence report and conducted the hearing by video

conference because of concerns that Williams would be difficult to control if brought

into the courtroom. Williams raises a host of issues on appeal and after careful review,

we conclude that most are not meritorious. However, the district court erred by

conducting the sentencing hearing without Williams physically present and without first

obtaining a presentence report. Therefore, we AFFIRM Williams’s conviction but

VACATE his sentence and REMAND for resentencing.

I.

In 1984, a jury convicted Williams of planting a pipe-bomb in a newspaper

vending machine, which exploded and killed his stepfather, and the district court

sentenced him to 109 years imprisonment. Williams filed several petitions for postconviction relief contesting his continued incarceration and alleging misconduct by

prison officials. Williams filed one of these petitions in the Western District of

Tennessee, and it was assigned to Judge Breen. Judge Breen denied the petition on

March 21, 2006.

On May 8, 2008, Judge Breen’s chambers received an envelope from Williams

containing a white substance. The letter stated that the reader had just been exposed to

one gram of anthrax, and the building should be cleared immediately. Curiously, the

letter also stated, “Do Not Panic, Stay Calm!” The letter was signed by Williams and

contained links to websites attempting to garner support for his release. Judge Breen’s

law clerk discovered this letter and, understandably, did not stay calm. His clerk alerted

officials who appear to have relatively quickly determined that the substance was not

anthrax but just sugar.
No. 09-5256 United States v. Williams Page 3

Law enforcement determined that Williams was responsible for mailing the letter

and, after a brief investigation, indicted him under 18 U.S.C. § 876(c) for mailing a

threatening communication to a federal judge.

The district court appointed counsel to represent Williams. After a psychiatric

exam revealed that Williams was competent to stand trial, the district court held a

hearing on whether Williams could proceed pro se as he wished. Williams stated that

he had several “self-taught” degrees including a juris doctorate. Williams had received

a G.E.D. and, for a time, attended Blackstone School of Law in Dallas, Texas where he

took courses in evidence, federal jurisdiction, and criminal law and procedure. After

thoroughly questioning Williams about his qualifications and ability to represent himself,

the district court granted Williams’s motion to proceed pro se and appointed “elbow

counsel” to assist him. The court granted the motion in part because it realized that

Williams’s trial strategy would likely put him in conflict with appointed counsel’s

ethical obligations.

On the day trial commenced, Williams objected to appearing in front of the jury

in prison attire and requested that the district court give him a budget to purchase

clothing for the trial. The district court explained that it could not provide any funds, but

Williams could change into other clothing if someone provided it to him. The district

court also admonished the jury not to take Williams’s clothing into account.

At trial Williams did not contest that he mailed the letter or that it was sealed in

an envelope with a white powder and a warning that it contained anthrax. Williams

admitted this in his own testimony, during his closing statement, and in a taped phone

conversation that the United States admitted into evidence. After the close of evidence,

the jury quickly convicted Williams.

The district court scheduled sentencing for February 24, 2009. At the sentencing

hearing Williams’s elbow counsel appeared but the Marshals Service did not bring

Williams because of concerns that he would be disruptive. The Marshals Service

claimed that since his last court appearance Williams had been extremely uncooperative

and combative, and had threatened to cause a disturbance at his next court appearance.
No. 09-5256 United States v. Williams Page 4

Because of this, the Marshals Service informed the district court that they would want

Williams in full restraints along with three or four officers instead of the normal one or

two if Williams needed to be present. The record does not indicate why the restraints

and extra guards would not be satisfactory, but the district court determined that it would

be best to conduct the sentencing hearing using video conferencing technology without

Williams physically present. Williams’s elbow counsel did not object.

Williams appeared by video at the sentencing hearing, which was held three days

later. The video conference appears to have worked well with all parties able to clearly

see and hear each other and Williams did not object to not being physically present in

the courtroom. The district court sentenced Williams to five-years imprisonment to run

consecutively with his prior 109-year sentence.

Williams’s appointed counsel raises six issues on appeal. Williams also

submitted a pro se supplemental brief alleging several additional errors in his trial and

sentencing.

II.

After trial, the district court held an initial hearing without Williams and decided

to conduct his sentencing hearing by video conference. Williams’s elbow counsel was

present at this conference and did not object to this procedure. Three days later the

district court conducted the sentencing hearing by video conference with Williams in

prison and “appearing” on a video screen in the courtroom. At the time Williams did not

object to not being physically present in the courtroom, but on appeal he argues that this

procedure violated his right under Federal Rule of Criminal Procedure 43(a) to be

present at sentencing.

A. Standard of Review.

Williams argues that we should review this claim involving an interpretation of

the Rules of Criminal Procedure de novo. Cf. United States v. Davidson, 409 F.3d 304,

310 (6th Cir. 2005) (reviewing de novo a district court’s application of the Federal Rules

of Criminal Procedure). Williams did not raise this argument before the district court,
No. 09-5256 United States v. Williams Page 5

1

The United States argues that Williams was properly excluded from the courtroom because he

was unruly and the Marshals Service was concerned about restraining him. However, the United States

does not argue that Williams’s disruptive conduct brought him within the exception in Rule 43(c)(1)(C)

that permits a court to exclude a defendant who persists in unruly conduct after a warning, and this

exception does not apply because the district court did not first warn Williams before removing him.

and we typically review claims that were not advanced in the district court under the

heightened plain-error standard pursuant to Rule 52(b), see, e.g., United States v.

Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). However, even though plainerror review might have been available for this claim, we will not apply the plain-error

standard unless requested to do so by one of the parties. See United States v. McCarty,

628 F.3d 284, 289 (6th Cir. 2010); United States v. Salem, 597 F.3d 877, 884 (7th Cir.

2010); United States v. Blackie, 548 F.3d 395, 404 (6th Cir. 2008) (Sutton, J.,

concurring) (“The government never asked us to apply plain-error review to this claim,

which by itself is reason enough not to apply this standard to the issue.”). Here, the

United States did not challenge Williams’s assertion that de novo review applied and

never argued that this claim should be reviewed for plain error. Instead, the United

States argues that any error was harmless. In contrast, the United States did argue that

certain of Williams’s other claims should be reviewed for plain error. Therefore,

because the United States failed to request that we apply plain-error review, it has

forfeited any argument that we should apply that standard, and we will review

Williams’s claim de novo.

B. Whether the District Court Erred by Conducting the Sentencing Hearing

by Video Conference.

The district court erred by conducting the sentencing hearing by video conference

with Williams not physically present in the courtroom. With certain limited exceptions

not applicable here,1

 Rule 43(a) requires that a criminal defendant be present at certain

stages of his or her proceedings, including sentencing. Fed. R. Crim. P. 43(a)(3). This

requirement comports with the general view adopted by our sister circuits that

criminal defendants have a constitutional right to be present at sentencing. See

United States v. DeMott, 513 F.3d 55, 58 (2d Cir. 2008); United States v. SepulvedaContreras, 466 F.3d 166, 169 (1st Cir. 2006); United States v. Bigelow, 462 F.3d 378,
No. 09-5256 United States v. Williams Page 6

381 (5th Cir. 2006); United States v. Agostino, 132 F.3d 1183, 1199 n.7 (7th Cir.

1997).

Three different courts of appeal have addressed whether electronic “presence”

by video conference at sentencing satisfies the requirements of Rule 43(a), and all have

concluded that it does not. See United States v. Torres-Palma, 290 F.3d 1244, 1248

(10th Cir. 2002); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001); United

States v. Navarro, 169 F.3d 228, 239 (5th Cir. 1999). Consistent with the results reached

by our sister circuits, we agree that a district court may not conduct a sentencing hearing

by video conference. The text of Rule 43 does not allow video conferencing. The

structure of the Rule does not support it. As our sister circuits have recognized, and

anyone who has used video conferencing software is aware, “virtual reality is rarely a

substitute for actual presence.” Lawrence, 248 F.3d at 303. While an individual may

determine that the benefits of not having to travel outweigh the costs of having a meeting

by video conference, we do not, and cannot, perform such a balancing with a criminal

defendant’s rights. Until such time as the drafters of the Rule instruct us otherwise,

district courts may not conduct sentencing hearings by video conference.

Although the United States makes much of the fact that the video conferencing

worked well and the parties were able to clearly see and hear each other, that argument

misses the mark. The quality of the video conference connection is irrelevant in this

situation. Rule 43 requires that the defendant be present, which simply cannot be

satisfied by anything less than physical presence in the courtroom. Being physically

present in the same room with another has certain intangible and difficult to articulate

effects that are wholly absent when communicating by video conference. As written, the

Rule reflects a firm judgment in favor of physical presence and does not permit the use

of video conferencing as a substitute.

The United States argues that the error was harmless, but has failed to establish

that Williams would not have received a lower sentence had he been physically present

at sentencing. In harmless-error analysis, the United States bears the burden and “must

demonstrate to the Court with certainty that the error at sentencing did not cause the
No. 09-5256 United States v. Williams Page 7

defendant to receive a more severe sentence.” United States v. Gillis, 592 F.3d 696, 699

(6th Cir. 2009) (internal quotation marks and citation omitted). Harmless-error analysis

in this context is, as the Tenth Circuit recognized in rejecting such an argument, just a

different angle on the arguments in favor of video conferencing because of its efficiency.

See Torres-Palma, 290 F.3d at 1248; accord United States v. Thompson, 599 F.3d 595,

601 (7th Cir. 2010) (rejecting harmless-error argument where the district court violated

Rule 43 by conducting a supervised-release revocation hearing by video conference

because “there is no way to know what the judge would have done had he been present

. . . and face-to-face with [the defendant]”). Although the United States is correct that

Williams might have received the exact same sentence if he had been physically present,

it has offered nothing to convince us that he certainly would have and, therefore, failed

to meet its burden.

District courts have broad discretion in selecting a sufficient sentence for each

individual defendant. In light of this discretion, without any argument from the United

States based on the unique facts of this case, we cannot now substitute our judgment for

that of the district court and speculate as to what sentence Williams might have received

had he been physically present. Therefore, because the United States did not carry its

burden to establish that the error was harmless, and the district court erred by conducting

the sentencing by video conference, we vacate Williams’s sentence and remand for

resentencing.

III.

Williams also argues that the district court erred by sentencing him without first

having a presentence report prepared. At the sentencing hearing, Williams did not object

to proceeding without a presentence report and attempted to waive preparation of one.

While we would generally review this claim for plain error, see Fed. R. Crim. P. 52(b),

like Williams’s claim that he was denied the right to be present at sentencing, we also

review this claim de novo because the United States has not asserted that plain-error

review should apply.
No. 09-5256 United States v. Williams Page 8

Although it is not preferred, a district court need not obtain a presentence report

before sentencing a defendant.

Presentence reports, while often an important resource, are not a

mandatory part of the sentencing process. Both the Federal Rules of

Criminal Procedure and the Sentencing Guidelines expressly provide that

a district judge may sentence a defendant without a presentence report

“[if] the court finds that the information in the record enables it to

meaningfully exercise its sentencing authority under 18 U.S.C. § 3553,

and the court explains its finding on the record.”

United States v. Brown, 557 F.3d 297, 299 (6th Cir. 2009) (alteration in original)

(quoting Fed. R. Crim. Pro. 32(c)(1)(A)(ii); U.S.S.G. § 6A1.1(a)(2)). While a district

court may sentence a defendant without a presentence report, the defendant may not

waive preparation of a presentence report. U.S.S.G. § 6A1.1(b); Brown, 557 F.3d at 300.

Here, the district court erred by relying on Williams’s waiver to impose a

sentence without first obtaining a presentence report. Although the district court

conducted the sentencing hearing before this Court issued its decision in Brown, the

Guidelines in effect at the time of sentencing stated that a defendant may not waive

preparation of the presentence report. U.S.S.G. § 6A1.1(b) (2008); cf., e.g., United

States v. Orleans-Lindsay, 572 F. Supp. 2d 144, 158, 164 (D.D.C. 2008) (making the

requisite finding that it could impose a sentence without a presentence report after

defendant attempted to waive preparation of a presentence report). District courts need

not use any magic words in order to make this finding. However, there is nothing in this

record from which we can infer that the district court found it could sentence Williams

without a presentence report. After the jury returned its verdict, the district court asked

Williams if he wished to waive preparation of a presentence report and proceed with

expedited sentencing. Williams agreed and the district court stated that “the Presentence

Report is waived.” At the sentencing hearing the district court remarked that “[t]he

preparation of a Presentence Report was waived in this case so that Mr. Williams could

expeditiously appeal the decision of the jury as well as the sentencing decision.” From

the record we cannot conclude that the district court found it could proceed without a

presentence report. The only justification offered for proceeding without the presentence
No. 09-5256 United States v. Williams Page 9

report is Williams’s waiver. However, because a defendant may not waive preparation

of a presentence report, the district court erred when it imposed a sentence without first

obtaining the presentence report or making a finding on the record that it could proceed

without it.

Because the use of video conferencing requires us to vacate Williams’s sentence

and remand for resentencing, we expect that the district court will either make the

requisite finding that a presentence report is not necessary or obtain a presentence report

before resentencing Williams.

IV.

Turning back to the pre-trial proceedings, Williams argues that the district court

did not make the necessary findings that he had knowingly and voluntarily waived his

right to counsel. The United States argues that we should review this claim for plain

error, but this Court has not clearly identified what the appropriate standard of review

is. Some of our prior decisions apply a de novo review, while others review for plain

error. See United States v. McBride, 362 F.3d 360, 365-66 (6th Cir. 2004) (discussing

the conflicting standards of review applied in this circuit). McBride and other cases have

left resolving this issue for another day, see id. at 366, and we do the same as the waiver

was proper under either standard.

The Sixth Amendment guarantees criminal defendants the right to trial counsel

and also the right to proceed without counsel. Faretta v. California, 422 U.S. 806, 835

(1975). A criminal defendant may waive his or her right and proceed without counsel,

but must do so knowingly and voluntarily. Id. When an accused wishes to represent

himself, the district court “must ask the defendant a series of questions drawn from, or

substantially similar to, the model inquiry set forth in the Bench Book for United States

District Judges.” McBride, 362 F.3d at 366 (citing United States v. McDowell, 814 F.2d

245, 250 (6th Cir. 1987)). Very generally, the model inquiry is thirteen questions about

the defendant’s familiarity with the law and legal system, and the charges against him.

This inquiry must be followed by a strong admonishment that the court recommends

against the defendant trying to represent himself or herself. Additionally, the district
No. 09-5256 United States v. Williams Page 10

court must make a finding that the defendant has knowingly and voluntarily waived his

or her right to counsel. See id.

The district court’s questioning substantially covered the thirteen model

questions drawn from the Bench Book and it gave Williams a stern admonishment

against proceeding without counsel. Williams, however, argues that the district court did

not make the requisite finding that he had knowingly and voluntarily waived his right

to counsel and instead stated, “I find that you have the requisite knowledge, education

and ability to represent yourself in this matter.” The court continued, “You know what

you want to do and so you are capable of doing that.” Although the district court did not

specifically find that Williams had knowingly and voluntarily waived his right to

counsel, the colloquy establishes that Williams’s waiver was knowing and voluntary, and

the district court substantially made the required finding.

Additionally, there is no suggestion that Williams’s waiver was not knowing or

voluntary. Accordingly, we hold that the district court properly questioned Williams and

determined that his waiver of the right to counsel was knowing and voluntary.

V.

On appeal, Williams also asserts that the district court erred by forcing him to

proceed at trial in prison clothing. However, the district court did not prohibit Williams

from wearing clothing of his choice at trial, and did not violate his rights by failing to

provide him with alternate clothing. A criminal defendant cannot be forced to appear

at trial in prison clothing. Estelle v. Williams, 425 U.S. 501, 512-13 (1976); United

States v. Brown, 367 F.3d 549, 554 (6th Cir. 2004). However, the court is not required

to furnish alternate clothing for the defendant. Brown, 367 F.3d at 554 (proceeding in

prison clothing did not violate the defendant’s rights where the court was willing to wait

for family members to bring other clothing, but they failed to do so). Here, the district

court remarked that it would let Williams change if someone brought him other clothing.

The district court’s failure to provide Williams funds to purchase clothing does not

amount to compelling him to appear in prison clothing in violation of his constitutional
No. 09-5256 United States v. Williams Page 11

rights. The district courts are not haberdasheries or money lenders. With their already

crowded dockets, they need not take on the additional responsibility of ensuring that

criminal defendants are in their dress of choice. Therefore, because the district court

would have allowed Williams to change into other clothing if someone provided it for

him, it did not force him to appear in prison attire and did not violate his constitutional

right to a fair trial.

VI.

Williams argues that the United States presented insufficient evidence to

establish his guilt. However, the evidence presented at trial was more than sufficient to

establish Williams’s guilt. When a criminal defendant does not make a motion for a

judgment of acquittal at the close of evidence, reversal is only appropriate on appeal if

a “manifest miscarriage of justice” would result from affirming. United States v.

Walden, 625 F.3d 961, 967-68 (6th Cir. 2010) (quoting United States v. Frederick, 406

F.3d 754, 765 (6th Cir. 2005)). “A miscarriage of justice exists only if the record is

devoid of evidence pointing to guilt.” United States v. Price, 134 F.3d 340, 350 (6th Cir.

1998) (internal quotations omitted).

In order to establish a violation of section 876(c) in this case, the prosecution was

required to establish beyond a reasonable doubt that: (1) the defendant mailed a

communication containing a threat to kidnap or injure a person; (2) the defendant acted

knowingly; and (3) the recipient was a United States judge. 18 U.S.C. § 876(c).

However, far from establishing a miscarriage of justice, the evidence in this case

appears to overwhelmingly establish Williams’s guilt. There was never any serious

dispute that Williams mailed the letter purporting to contain anthrax. He admitted at

least twice during trial that he had done it and the government introduced a taped phone

conversation where Williams admitted sending the letter. Accordingly, the record is not

devoid of evidence pointing to guilt and we affirm Williams’s conviction.
No. 09-5256 United States v. Williams Page 12

Williams argues that the evidence was insufficient because, although he mailed

the letter, it did not contain a threat. Whether a writing is a threat is a question of fact

for the jury. United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994); United States v.

Taylor, 972 F.2d 1247, 1251 (11th Cir. 1992); United States v. Lincoln, 589 F.2d 379,

381 (8th Cir. 1979); see United States v. Chick, 955 F.2d 45, at *2 (6th Cir. 1992)

(unpublished table decision). Here, the district court charged the jury that:

A threat is a serious statement expressing an intention to injure

any person which under the circumstances would cause apprehension in

a reasonable person as distinguished from idle or careless talk,

exaggeration or something said in a joking manner. It is not necessary

for the government to prove that Mr. Williams intended to carry out a

threat or to prove that Mr. Williams is capable of carrying out a threat.

It is also not necessary for the government to prove that the

recipient actually felt threatened.

At trial the clerk who opened the letter testified that the whole experience was “nerve

wracking” and the United States presented evidence about the emergency response

before authorities discovered that the substance was not actually anthrax. Under this

objective standard, the record is not devoid of evidence establishing that the letter was

a threat. Therefore, we hold that the jury’s conclusion that the letter was a threat is

supported by sufficient evidence.

This communication was a threat even though the danger of harm incurred

immediately upon opening the letter and not at some future point. Williams argues that

the message could not be a threat because it did not contain any prospective warning; the

harm of being exposed to anthrax occurred as soon as the recipient opened the letter.

Essentially, Williams contends that a threat must be something akin to, “Grant my

release or I’ll break your legs,” and merely breaking legs would not be a threat.

However, if Hollywood’s portrayal of the mob world has taught us anything, merely

breaking legs can be a threat. When Sam “Ace” Rothstein directs guards to smash a

cheater’s hand in Martin Scorsese’s Casino, a reasonable person could interpret that as

a threat. Casino (Universal Pictures 1995). The act is objectively a threat even though
No. 09-5256 United States v. Williams Page 13

some severe harm occurred immediately. Similarly, several scenes in the critically

acclaimed The Godfather also illustrate this principle. For example, a reasonable person

could interpret Sonny Corleone’s actions as a threat when he beats up Carlo Rizzi after

learning that Carlo was abusing Sonny’s sister. The Godfather (Paramount Pictures

1972). Here too, a reasonable person could view Williams’s letter as a threat even

though, if the letter contained real anthrax, it would have harmed the recipient

immediately. Just as Sonny did not specifically indicate what would happen to Carlo if

his conduct did not change, Williams need not do the same here for the communication

to be a threat.

Over a dissent, the Third Circuit also concluded that communications containing

fake anthrax, similar to the one Williams sent, were threats within the meaning of the

statute even though they created an immediate fear of harm. United States v. Zavrel, 384

F.3d 130, 137 (3d Cir. 2004). Williams urges this court to adopt the dissent’s argument

in Zavrel that because the harm from being exposed to anthrax occurs immediately upon

opening the envelope, such a communication is not a threat within the meaning of

section 876. Id. at 139 (Stapleton, J., dissenting). The dissent argued that a

communication such as this, which does not warn of any prospective injury or attempt

to influence conduct under the possibility of future harm, is not a threat. Id. However,

we disagree. Such fine distinctions are not warranted and we hold that under an

objective standard, the letter was a threat even though it did not specifically threaten any

further injury beyond the initial harm brought on by opening the letter.

VII.

Williams’s argument that the district court erred by failing to charge the jury that

the United States must show Williams had the specific intent to threaten is also without

merit. This Circuit reviews a district court’s decision not to give a requested instruction

for abuse of discretion. United States v. Henderson, 626 F.3d 326, 342 (6th Cir. 2010).

A district court abuses its discretion if “(1) the proposed instruction is substantially

correct; (2) the proposed instruction is not substantially covered by other delivered
No. 09-5256 United States v. Williams Page 14

charges; and (3) the failure to give the instruction impaired the defendant’s theory of the

case.” United States v. Triana, 468 F.3d 308, 315 (6th Cir. 2006).

This Court has not decided whether the United States must establish that a

defendant had the subjective intent to threaten in order to establish a violation of section

876(c) and we do not decide that issue at this time. Although we have previously held

that section 875(c), which, analogously, prohibits sending threats to kidnap or injure a

person, is a general intent crime, United States v. DeAndino, 958 F.2d 146, 149 (6th Cir.

1992), the Supreme Court has since recognized that in some circumstances the

prosecution may need to establish that the defendant subjectively intended to make a

threat, Virginia v. Black, 538 U.S. 343, 364-65 (2003). Nonetheless, even if we accepted

Williams’s argument, the district court’s charge substantially reflected Williams’s

proposed instruction that the jury must find that he subjectively intended to make a

threat. In pertinent part, the district court charged the jury that it must find Williams

knowingly and willfully mailed a communication to Judge Breen. The court then

continued that it must also find that Williams “knowingly and willfully included a threat

to another person in that communication.” Although we do not decide whether a

defendant must have the subjective intent to threaten in order to violate section 876(c),

these two instructions reflect that the jury had to find that Williams subjectively intended

to make a threat. Therefore, the district court did not abuse its discretion in failing to

give Williams’s proposed instruction.

VIII.

In addition to the six issues appointed counsel raised on appeal, Williams

submitted a pro se brief alleging an additional nine errors. Generally, these claims relate

to (a) whether Williams was properly removed from the courtroom for inappropriate

conduct; (b) whether the trial judge needed to recuse herself; (c) whether the court

properly denied Williams’s request to serve eighteen subpoenas; (d) whether the district

court should have appointed an investigator; (e) whether there was prosecutorial

misconduct; (f) whether the district court sentenced Williams outside the statutory limits;
No. 09-5256 United States v. Williams Page 15

and (g) whether Williams’s counsel was ineffective. Because Williams was represented

by counsel on this appeal, we decline to address these pro se arguments. Cf. United

States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009) (declining to address a defendant’s

pro se arguments because he was represented by counsel).

IX.

While most of the issues that Williams raises on appeal are not meritorious, the

district court did err by conducting the sentencing hearing by video conference and

without a presentence report. Therefore, we AFFIRM Williams’s conviction but

VACATE his sentence and REMAND for resentencing with Williams present in the

courtroom.
No. 09-5256 United States v. Williams Page 16

_______________________

CONCURRENCE

_______________________

THAPAR, District Judge, concurring. I join the majority’s opinion in full. I

write separately only to express my concern with a rule adopted in this and other circuits

that allows parties to unilaterally waive plain error review. 

Judges are not like the supercomputer Watson. See

http://www.engadget.com/2011/01/13/ibms-watson-supercomputer-destroys-all-humansin-jeopardy-pract. They can do their best to be prepared with the Rules of Procedure and

Evidence, the relevant constitutional law, and applicable statutes—all refracted through

two layers of precedent. But they have no hope of knowing everything, and when

unfamiliar issues arise in the courtroom, they will not catch them every time. Even when

they do, they cannot always delay the proceeding to find the right answer. Clogged

dockets and the delay imposed on parties’ lives mean time is of the essence. Fortunately,

in our adversarial system, judges have some help.

The plain error rule, Rule 52(b) of the Federal Rules of Criminal Procedure,

broadens responsibility for catching inevitable mistakes and prioritizing which are worth

worrying about. See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009) (noting that

“errors are a constant in the trial process” (quoting United States v. Padilla, 415 F.3d

211, 224 (1st Cir. 2005) (en banc) (Boudin, C.J., concurring))). It says that parties who

fail to direct district judges to potential errors cannot then seek relief from those errors

on appeal—except in very narrow circumstances. See United States v. Olano, 507 U.S.

725, 732 (1993) (holding that courts of appeals should only review forfeited errors if

“the error seriously affects the fairness, integrity or public reputation of judicial

proceedings” (citations and internal quotation marks omitted)). And so it encourages

litigants to decide what issues really matter and to raise them while the district court still

has time to take action, rather than “sandbagging” and remaining silent pending the

outcome of the case. See Puckett, 129 S. Ct. at 1428; United States v. Young, 470 U.S.
No. 09-5256 United States v. Williams Page 17

1, 15 (1985) (warning that there should not be an “unwarranted extension” of the

“exacting definition of plain error” because it would skew the careful balance the rule

is meant to protect).

The district judge is not the only one to benefit. Naturally, the rule preserves

systemic judicial resources by “encourag[ing] all trial participants to seek a fair and

accurate trial the first time around.” Johnson, 520 U.S. at 466. And it gives the parties

strategic latitude. Litigants may choose not to object even if they perceive a legal error.

A defense attorney, for instance, may not object to certain testimonial hearsay about his

client—which would be inadmissible under Crawford v. Washington, 541 U.S. 36

(2004)—because he knows it exposes an inconsistency in the government’s theory of the

case. Anyone who has tried a case knows that these strategic decisions—even foregoing

certain constitutional rights—may look like error later, especially when viewed in

isolation on a cold record. Yet, in the heat of battle, such decisions often make sense to

a seasoned trial lawyer. The last thing the rules should do is encourage trial judges to

get in the middle of these decisions and force defense attorneys to explain themselves

with the government keenly listening.

So preserving Rule 52(b) as a limit on appellants’ potential relief is important.

Rules that allow courts to casually disregard it would be “fatal.” Puckett, 129 S. Ct. at

1428 (“‘[A] reflexive inclination by appellate courts to reverse because of unpreserved

error would be fatal.’” (quoting Padilla, 415 F.3d at 224 (Boudin, C.J., concurring))).

For this reason, courts of appeals should take a skeptical look at the rule adopted by this

and other circuits, allowing parties to unilaterally waive the plain error standard of

review by failing to ask for it. A close look, it turns out, reveals that the rule has little

to recommend it.

First, allowing parties to unilaterally waive plain error review is hard to square

with the language of Rule 52, which says nothing about the ability to waive the standard

of review. And it is hard to reconcile with the Supreme Court’s interpretation of that

language. The Olano Court said that courts of appeals “cannot” reverse decisions based
No. 09-5256 United States v. Williams Page 18

on forfeited errors “unless Rule 52(b)” or some other provision allows it. 507 U.S. at

732. And the Court has said that courts of appeals can “only” correct forfeited errors as

allowed under Rule 52(b), emphasizing elsewhere that there “must” be plain error to

correct forfeited errors. United States v. Marcus, 130 S. Ct. 2159, 2164 (2010); Johnson

v. United States, 520 U.S. 461, 466-67 (1997). Yet this is precisely what some courts

of appeals are doing—reversing forfeited errors without regard for the requirements of

Rule 52(b).

Second, proponents of this waiver rule have yet to offer a compelling

explanation. Some courts have offered no explanation. See, e.g., United States v. TapiaEscalera, 356 F.3d 181, 183 (1st Cir. 2004); cf. United States v. Jeffries, 587 F.3d 690,

691 n.1 (5th Cir. 2009) (“We also note that the Government does not seek plain error

review.”). But even those who have are unconvincing. For instance, the Sixth Circuit

apparently hangs its hat on the theory that the court of appeals can assume a party

preserved an issue below if his opponent does not say otherwise. See, e.g., United States

v. Fuller, 77 F. App’x 371, 380 n.9 (6th Cir. 2003). But the Sixth Circuit’s theory is an

awkward fit where, as here, a party clearly did not object. After all, Mr. Williams, no

shrinking violet, lodged three objections at the outset of his sentencing, but neither he

nor his counsel complained about it being performed via video conference.

Similarly, the D.C. Circuit offered, in a footnote, that parties are supposed to state

whether they dispute their opponents’ proposed standard of review under Federal Rule

of Appellate Procedure 28(b); otherwise, the D.C. Circuit assumes the point is conceded.

United States v. Cyr, No. 91-01, 2001 WL 1699422, at *3 n.3 (D.C. Cir. Dec. 26, 2001).

But, under this view, an appellee could waive any standard of review. Surely this is

wrong. A court of appeals would not, for instance, review a question of law for clear

error just because both parties mistook it for a question of fact. Nor would a court of

appeals review de novo a decision committed to a district court’s discretion just because

the parties forgot to specify the standard of review. And, not surprisingly, the case law

supports the view that courts are not held hostage to the parties’ poor briefing when
No. 09-5256 United States v. Williams Page 19

determining the appropriate standard of review. See Cordrey v. Euckert, 917 F.2d 1460,

1465 (6th Cir. 1990) (“Although neither party discussed the proper standard of review

on appeal, we conclude that the issue of waiver is a question of law or at least of mixed

law and fact, subject to de novo review.”); see also United States v. Vontsteen, 950 F.2d

1086, 1091 (5th Cir. 1992) (“The parties’ failure to brief and argue properly the

appropriate standard may lead the court to choose the wrong standard. But no party has

the power to control our standard of review. A reviewing court may reject both parties’

approach to the standard.”). 

Also allowing waiver of Rule 52(b)’s plain error requirement, the Seventh Circuit

analogizes to other instances in which a party is allowed to waive arguments that his

opponent has “waived” an opportunity for relief. In United States v. Leichtnam, for

instance, the Seventh Circuit held that plain error review did not apply, even though the

defendant failed to object to an error below, because the government neglected to argue

that the defendant had “waived” the error by not objecting. 948 F.2d 370, 375 (7th Cir.

1991). For support, it cited Garlington v. O’Leary, 879 F.2d 277, 282-83 (7th Cir.

1989)—a habeas case, not subject to Rule 52(b)—which held that “the defense of waiver

can itself be waived by not being raised.” 948 F.2d 370, 375 (7th Cir. 1991). In turn,

Garlington supported its broad rule with comparisons to overlooking a party’s filing an

untimely objection to personal jurisdiction because its opponent did not protest below,

879 F.2d at 282-83 (citing Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 663-64 (7th

Cir. 1986)), and to overlooking procedural defaults in habeas cases because the

respondent did not object, id. at 283, 283 n.7 (citing Andrews v. United States, 817 F.2d

1277, 1278 n.1 (7th Cir. 1987) and Barrera v. Young, 794 F.2d 1264, 1268 (7th Cir.

1986)). See also United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (holding

that plain error is waivable because litigants can waive waiver arguments).

Set aside this view’s conflict with the text of the rule, its conflict with the

Supreme Court’s interpretation of the rule, and the failure to distinguish between review

of “waived” arguments (subject to no rule of procedure) and review of “forfeited”

arguments (subject to Rule 52(b)). The Seventh Circuit’s analogy overlooks an
No. 09-5256 United States v. Williams Page 20

important nuance. Sure, a court of appeals can examine an otherwise forfeited issue

(e.g., was it error to sentence Williams by video?) if a party fails to notify the court of

the forfeiture. But this does not mean that the same forgetful party can waive the

standard of review (e.g., plain error or de novo?) the court uses to evaluate that issue.

Indeed, courts of appeals, including this one, routinely hold that standards of review are

not waivable. See United States v. Freeman, – F.3d – , No. 09-4158, 2011 WL 1226091,

at *5 (6th Cir. April 4, 2011) (“‘[A] party cannot ‘waive’ the proper standard of review

by failing to argue it.’” (quoting Brown v. Smith, 551 F.3d 424, 428 n. 2 (6th Cir.

2008))); Worth v. Tyer, 276 F.3d 249, 262 (7th Cir. 2001) (“However, the court, not the

parties, must determine the standard of review, and therefore, it cannot be waived.”

(citing Vizcaino v. Microsoft Corp., 120 F.3d 1006, 1022 n.4 (9th Cir. 1997) (en banc)

(O’Scannlain, J., concurring in part and dissenting in part))). And with this in mind, at

least one circuit has held that the parties cannot waive plain error review by failing to

request it. United States v. Bain, 586 F.3d 634, 639, 639 n.4 (8th Cir. 2009) (per

curiam).

Courts seem to confuse this distinction because they simply read Rule 52(b) as

controlling whether they can even address a forfeited issue in the first place, not as

supplying a standard for how the court should review that issue. What they overlook is

that Rule 52(b) contains both a “whether” and a “how.” On the one hand, the Supreme

Court has interpreted Rule 52(b) as limiting “whether” courts of appeals can even

consider an issue. Courts of appeals can only consider forfeited issues if they represent

a “miscarriage of justice.” Olano, 507 U.S. at 736. But on the other hand, Rule 52(b)

also controls “how” courts of appeals review those forfeited issues. It instructs courts

to only correct an error if it is “plain” and “affects substantial rights.” Id. at 732-33. So

while it might make sense to say that a party can “waive” Rule 52(b)’s limit on

“whether” to consider an “error,” I know of no reason to also hold that a party can waive

Rule 52(b)’s limits on “how” to consider that error—the standard of review. See

Freeman, 2011 WL 1226091, at *5.
No. 09-5256 United States v. Williams Page 21

Interpreting Rule 52(b) this way is consistent with the Seventh Circuit’s

analogies. In the same way that a respondent could waive an objection to allowing a

court to consider a habeas issue otherwise procedurally defaulted, an appellee can waive

an objection to a court of appeals considering a forfeited issue even though it does not

represent a miscarriage of justice. But the respondent could not also waive the standard

of review for the habeas issue, and neither could an appellee waive application of the

plain-error-affecting-substantial-rights standard of review for the forfeited issue. 

Accordingly, while I think the majority’s decision is correct under the applicable

law, I respectfully fear the applicable law in this and other circuits is wrong. The Eighth

Circuit is on the right side of the split. And at least until Watson makes his way into

every courtroom, plain error review ought to be unwaivable.