# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2015 Decided November 2 4 , 2015

No. 11

- 3034

U NITED S TATES OF A MERICA
, A PPELLEE

v.

W ILLIAM C ORDOVA
, ALSO KNOWN AS M ARIO
, ALSO KNOWN AS C ENTINELLA
, A PPELLANT

Consolidated with 11

- 3043, 11

- 3044

Appeals from the United States District Court
for the District of Columbia (No. 1:08

- cr

- 00167

- 1 ) (No. 1:08

- cr

- 00167

- 2 ) (No. 1:08

- cr

- 00167

- 4 )

Robert S. Becker

, Anthony D. Martin , and Mary E. Davis

, all appointed by the court, argued the causes and filed the join t briefs for Appellants

. Sherlock V. Grigsby entered an

appearance.

Lauren R. Bates , Assistant U.S. Attorney, argued the
cause for A ppellee. With her on the brief were Ronald C.
Machen Jr. , U.S. Attorney at the time the brief was filed, and2

Elizabeth Trosman

, Elizabeth H. Danello

, Gilberto Guerrero,
Jr. , and Nihar Ranjan Mohanty

, Assistant U.S. Attorneys.

Before: T ATEL
, M ILLETT
, and W ILKINS
, Circuit Judges

.

P ER C URIAM : William Cordova, Jose Gutierrez, and Melvin Sorto appeal their convictions for conspiracy, violent crimes in aid of racketeering, murder, assault, and federal and District of Columbia weapons offenses. They raise eight claims, four of which we address here ; the others we address in a judgment issued contemporaneously with this opini on. Finding none of the challenges examined herein meritorious,
we affirm as to these issues

.

I.

Cordova, Gutierrez, and Sorto (collectively “Appellants”) belong to Mara Salvatrucha, an international criminal gang
also known as MS

- 13. All three men are originally from El
Salvador. When Cordova and Gutierrez arrived in the District of Columbia, they moved in with Misael Esquina

- Flores and his parents, Feliciana Esquina

- Flores and Tomas Esquina, whom they had known in El Salvador. Local MS

- 13
members tre ated Cordova and Gutierrez deferentially because they came from El Salvador. Believing that the local gang presence was weak, Cordova and Gutierrez actively encouraged members to commit more violent crimes to improve MS

- 13’s status in the local gang hiera rchy.

On the evening of July 30, 2006, Cordova and Gutierrez pulled up next to another car, announced to the three men inside that they were MS

- 13 members, ordered the men not to move, and then opened fire, injuring those inside. None of
the victims die d.3

On April 22, 2007, Cordova and Gutierrez struck again, this time joined by Sorto. In retaliation for an attack on MS

13 by members of a rival gang, the three men trailed the rival gang members back to their home turf. They then opened fire on the gro up, killing Edwin Ventura and severely wounding
Nelson Maldonado.

Later in 2007, Cordova and Gutierrez shot Feliciana Esquina

- Flores while she was waiting for a bus. Although Feliciana survived the shooting, she is now blind.

Based on these three armed assaults, the government charged Appellants with conspiracy, violent crimes in aid of racketeering, murder, assault, and federal and District of Columbia weapons offenses. A jury convicted Appellants on all coun ts.

II

.

Cordova, Gutierrez, and Sorto argue that court

- imposed restrictions limiting their personal access to certain discovery documents deprived them of their Sixth Amendment rights to effective representation and to assist in their defense.
Because they suffered no plausible prejudice, we reject the argument.

A

.
At a pretrial conference, the District Court ordered the government to disclose to Appellants every Thursday any prior statements of witnesses who would be called to testify the following week. Those prior statements are commonly referred to as “Jencks Act materials,” 18 U.S.C. § 3500. The
District Court ’s order was more favorable to Appellants in that regard than the Jencks Act’s requirement of disclosure4

after a government witness testifies on direct examination, id. § 3500(b); s ee also F ED

. R. C RIM

. P. 26.2.

The District Court subsequently issued a protective order directing that Appellants could only review the Jencks Act materials in the physical presence of counsel or, as later clarified, defense paralegals or investigators. The order forbade Appellants’ possession of the materials or copies of them. For some unknown reason, the record contains nothing at all about the entry of this protective order. There is no protective order in the record, no notice of its entry on the docket, no trace of an in

- court, on

- the

- record discussion concerning the order’s entry, and no written or transcribed explanation of the bases for the judge’s decision to adopt the order. All that the record and briefing indicate is that there
was such a protective order and that all parties were aware of
its terms. None of the parties had any explanation for why the protective order and all material surrounding its entry are missing from the record.

Midway through the second week of trial, counsel for Gutierrez asked the court to reconsider the protective order. Gutierrez, whose English was limited, sought to “have the Jencks [materials] so that he could study it so that [meetings with counsel] would go a lot quicker.” Trial Tr. 3 (Nov. 3, 2010, Afte rnoon Session)

. His attorney explained that, “instead of [counsel] translating the documents, [Gutierrez]
would have had a chance to review them and think about them, and make our meeting[s] shorter and also more productive.” Id.

The government opposed t he request, citing concerns about security and the safety of witnesses involved in this prosecution of alleged MS

- 13 gang members. The government insisted that, “for those men to have that [Jencks]5

information back at the D.C. jail, floating around, free rein, from inmate to inmate, is a disaster.” Id. at 62

.
Gutierrez responded that the protective order could not rest upon alleged concerns about the identity of witnesses because that information was already known to Appellants and could easily be share d with others regardless of any
restrictions on their access to the Jencks Act materials. The requested modification, Gutierrez’s counsel emphasized, was only to “get a copy when he leaves here in the evening of the Jencks material” for upcoming witnesses “so that he could review those, and

. . . we could discuss them.” Id. at 62

- 63

.

The District Court denied Gutierrez’s request “for the reasons previously articulated”

– reasons that, alas, are not preserved anywhere in the record. Id. at 63

.
The next day, after learning that a defense investigator had previously and mistakenly left some Jencks Act materials with Sorto at the jail and that Sorto had carried the documents “back and forth” to trial, id. at 65, the District Court instructed
the Ma rshals not to permit Appellants to take any papers to or from the court at any time. Counsel then expressed concern that this new restriction would prevent Appellants from being able to keep and review their own notes from the trial or, once back at the j ail, to write down thoughts or questions to bring to counsel the following day. That led to an in camera meeting between the District Court , counsel, and the Marshals Service, during which the parties agreed that:

At the end of each court date, the couns el for the defendants will collect all papers of whatever kind that may have been either brought to court or used between counsel and their client, and keep it in their possession

– counsel’s possession

– overnight. With regard to returning to court the n ext day, the6

defendants will be permitted, if they wish, to make notations or jot down their thoughts on paper that they happen to have access to at the prison for the purposes of follow

- up discussions with their counsel when they return to court whenever the next day the
court is in session.

Trial Tr. 78

- 79 (Nov. 4, 2010, Afternoon Session)

. The
District Court reiterated that Appellants would not be permitted to “leave the court with anything at the end of the day” and that “under no circumstances shall t here be any additional copies of the discovery that are presented to the defense that are made for working purpose or for anyone else to see, nor under any circumstances are [defense paralegals, investigators, and associates] to provide a copy to the
defen dants to keep and take with them back to the jail.” Id. at 79

- 80

.

B

.

Under the Sixth Amendment, criminal defendants have a constitutional right to “be confronted with the witnesses against [them],

. . . and to have the assistance of counsel for [the ir] defense.” U.S. C ONST

. a mend . VI. Appellants assert that the protective order’s restrictions on their access to Jencks Act materials violated their Sixth Amendment rights by hampering counsel’s ability to mount, and Appellants’ ability to participate in, an effective defense against the government’s witnesses. More specifically, Appellants argue that requiring defense team members to superintend their review of discovery materials pressured the defense into either ( 1 ) devoting time to sitting with App ellants as they reviewed papers rather than dedicating that time to other trial preparations, or ( 2 ) cabining the time Appellants had to review the papers. Either way, Appellants argue, the order7

deprived counsel of the full benefit of Appellants’ individ ual input on the Jencks Act materials, which could have contributed important contextual information and impeachment evidence. Appellants also contend that, had they been afforded greater access to the Jencks Act materials, they would have been able to as sist their attorneys in identifying potential credibility issues and new topics for investigation.

The Federal Rules of Criminal Procedure give district courts the discretion to enter protective orders (subject always to the Sixth Amendment’s limitations). “At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” F ED

. R. C RIM

. P. 16(d). Moreover, a “trial court can and should, where appropriate, place a defendant and his counsel unde r enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.” Alderman v.
United States , 394 U.S. 165, 185 (1969). The burden of showing “good cause” is on the party seeking the order, and “among the conside rations to be taken into account by the court will be the safety of witnesses and others, a particular danger of perjury or witness intimidation, [and] the protection of information vital to national security[.]” F ED

. R. C RIM

. P. 16(d) Advisory Committee’ s Note to 1966 Amendment to Former Subdivision (e); see also 2 C HARLES A LAN W RIGHT &
P ETER J. H ENNING
, F EDERAL P RACTICE AND P ROCEDURE § 262 (4th ed. 2009).

We ordinarily review a district court’s balancing of those factors in issuing a protective order f or an abuse of discretion. See United States v. Mejia , 448 F.3d 436, 456 (D.C. Cir. 2006); cf. United States v. Celis , 608 F.3d 818, 829

- 40 (D.C. Cir. 2010) (no Sixth Amendment violation where “[t]he protective order and its management by the district court8

reflect an appropriate balancing of interests in the relevant

case

- specific context”). But here, the complete dearth of
information in the record regarding the issuance of the protective order confounds that effort. There is no visible exercise of discretion or balancing of factors by the District
Court for us to review. Cf. United States v. Williams , 951 F.2d 1287, 1290 (D.C. Cir. 199 1) (“The purpose of an appeal is to review the judgment of the district court, a function we cannot properly perform when we are left to guess at what it is we are reviewing.”).

Likewise, in reviewing Appellants’ challenge to the protective order’s limit ations on their access to the Jencks Act materials, we ordinarily would apply harmless error review if Appellants had preserved an objection to the order below and plain error review if they had not. However, the complete absence of any record of the orde r’s entry

– and thus necessarily of any objections to it

– upends that inquiry. It would seem less than fair to hold Appellants’ feet to the fire for not documenting their prior objections to an
undocumented order entered for undocumented reasons.

No ma tter. Even assuming that entry of the protective order was an abuse of discretion, there must be some material prejudice to Appellants to establish either harmless or plain

error. United States v. Olano , 507 U.S. 725, 732 (1993) (to establish plain error , defendants must show, inter alia , that the error affected their “substantial rights”); United States v.
Merlos , 8 F.3d 48, 50 (D.C. Cir. 1993) (“[B]oth harmless error and plain error review require us to determine whether the error was prejudicial.”); F E D

. R. C RIM

. P. 52(a) & (b) (same for both harmless error and plain error). The government has demonstrated beyond a reasonable doubt that there was no such prejudice here.9

To begin with, even though Appellants’ individual use and access were subject to co nditions, the effects of those limitations were counterbalanced by the District Court ’s decision to afford them four to eight days’ advance receipt of the materials when the Sixth Amendment and Jencks Act only require disclosure after the witness has testi fied. See 18 U.S.C. § 3500; Palermo v. United States , 360 U.S. 343, 353 n.11 (1959) (“The statute as interpreted does not reach any constitutional barrier.”); see also Scales v. United States , 367 U.S. 203, 257

- 58 (1961) (“That the procedure set forth in the [Jencks Act] statute does not violate the Constitution

. . . was assumed by us in Palermo [.]”); United States v. Stanfield , 360 F.3d 1346, 1356

- 58 (D.C. Cir. 2004) (noting that “the time allotted for review of Jencks material is often relatively brief, ” and finding no abuse of discretion where district court gave defense counsel only nine minutes to review “a very thick stack of papers” after witness’s direct testimony). The
District Court , in other words, built in a window of time that
ameliorated the practical impact of the access conditions.

Moreover, defense counsel had full and unfettered access to the Jencks materials at all relevant times, and the protective order did not otherwise limit their ability to discuss the materials with Appellants or to obtain their input.

The proof that the District Court ’s balance did not prejudice Appellants is in the pudding. The District Court invited Appellants to ask for extra time or a continuance if needed to review and investigate the Jencks Act materials.
See Pretrial Conference Tr. 46

- 47 (October 14, 2010) (after
counsel for Cordova represented that he would “be moving for a break in the trial” if a “real difficulty in investigating”

arose, District Court said: “That’s fine. And you will get it”);
id

. at 47 ( District Court indicated that if the defense “need[s] time to explore it, we will suspend the trial”); id . at 4810

( District Court assured defense counsel, “I am not going to let you be sandbagged”). The record does not indicate that any Appellant ev er expressed a need for that additional time. Nor

– as the government points out

– in all the intervening time, have Appellants identified a single concrete instance in which
their cross

- examination or any other aspect of their defense would have changed if they had been given unconditional
access to the Jencks Act materials. Cf. United States v. Emor

, 573 F.3d 778, 785

- 86 (D.C. Cir. 2009) (any error in government’s failure to produce potential Jencks Act material
was harmless because defendant failed to show disclosure would have affected the trial’s outcome); Celis , 608 F.3d at
839

- 40 (no error in trial court’s refusal to grant defendant
continuances to review Jencks Act materials where the court adjusted the trial schedule to afford the defense additional
time

, defendant did not identify what additional information she hoped to uncover or how it would have affected the result
at trial

, and counsel vigorously and effectively cross

examined the witness in question). The record thus forecloses any colorable claim of actual prejudice, and that is fatal to Appellants’ Sixth Amendment claim.

III.

Cordova, Gutierrez, and So rto argue that the trial judge
erred when he denied Gutierrez’s motion to recuse himself in response to an allegedly threatening letter.

A.

Prior to trial, in a search conducted pursuant to a separate investigation, the government found a letter Gutierrez had written to an acquaintance named Liliana. The letter asked Liliana to “help me with the Lady of Sivar to silence everyone who is against me.” Opp. to Def.’s Recusal Mo. 3. The letter11

then listed the judge, the prosecutors, potential witnesses, and
Gutierrez’s codefendants in this case.

Concerned that the letter could constitute a threat, the government informed the District Court about the letter’s existence and its plan to investigate further. After reviewing the letter, the government’s MS

- 13 exp ert in El Salvador opined that the letter’s reference to the “Lady of Sivar” could be referring to “a shot caller or a program runner from San Salvador” who would have the authority to order the named
individuals killed. Id. at 4. The government also loc ated Liliana, who interpreted the letter to mean that Gutierrez
wanted her to send the names to a “witch doctor in El Salvador who would use magic to determine if one of the names listed was ‘snitching’ on Gutierrez.” Id. Unable to
afford the witch docto r’s fee, however, Liliana never followed

up.

Gutierrez moved for the trial judge’s recusal on the basis of the letter. The judge denied the motion, explaining that given Liliana’s statement and the fact that Gutierrez had
written the letter “well over a year ago,” he had “no basis to think whatsoever that any of these defendants [were] . . . intending or trying in any way to be harmful to this Court or anyone else.” Pretrial Conf. Tr. 50 (Oct. 14, 2010); see also
Trial Tr. 17

- 18 (Oct. 18, 2010). There fore, the judge did not “believe it would affect my conducting of this trial and ruling on evidence and ruling on Motions in any way.” Pretrial
Conf. Tr. 50 (Oct. 14, 2010). He also rejected any additional security for himself, his family, or the trial.

When the government later sought to introduce the letter as evidence of Gutierrez’s consciousness of guilt, the judge refused to admit it on the ground that it was substantially more prejudicial than probative under Federal Rule of12

Evidence 403’s balanci ng test. He reasoned that the “total lack of clarity as to what exactly” Gutierrez’s intent had been in writing the letter and the consequent “interpretation by experts” would only confuse the jury. Trial Tr. 17 (Nov. 17,
2010 , Morning Session ).

B.

The recusal statute, 28 U.S.C. § 455(a), requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” We review a
district court’s denial of a motion to recuse for abuse of discretion, “appl[ying] an ‘objective’ standard: Recusal is required when ‘a reasonable and informed observer would question the judge’s impartiality.’” S.E.C. v. Loving Spirit
Found

. Inc. , 392 F.3d 486, 493 (D.C. Cir. 2004) (quoting United States v. Microsoft Corp. , 253 F.3d 34 , 114 (D.C. Cir. 2001) (en banc) (per curiam)). This standard requires that we take the perspective of a fully informed third

- party observer who “understand[s] all the relevant facts” and has “examined
the record and the law.” United States v. Holland

, 519 F.3d 909, 914 (9th Cir. 2008) (internal quotation marks omitted) (alteration in original).

This C ircuit has never decided a recusal claim based on an alleged threat against the trial judge. But other circuits have, and they recognize that even a legit imate threat does not necessarily require recusal. In re Basci a no , 542 F.3d 950, 956 (2d Cir. 2008) (“Although a plot or threat, real or feigned, may create a situation in which a judge must recuse himself, recusal is not ordinarily or routinely required. Even where a threat is serious . . . a judge may appropriately decline to recuse himself, at least in some circumstances.” (internal citations omitted)); United States v. Gamboa , 439 F.3d 796, 817 (8th Cir. 2006), abrogated on other grounds by United13

Sta tes v. O’Brien , 560 U.S. 218 (2010) (“While a defendant’s threat against a judge may in some cases raise a sufficient question concerning bias on the part of that judge, recusal is not automatic on the mere basis of the judge’s knowledge of the threat.”); United States v. Cooley , 1 F.3d 985, 993

- 94 (10th Cir. 1993) (noting that “threats or other attempts to intimidate the judge” “will not ordinarily satisfy the requirements for disqualification under § 455(a)”). Rather, the trial judge “must evaluate the t hreat itself to determine how much risk there is that it may be carried out and how
much harm there would be if it were” to determine if the threat would cause a reasonable observer to question the judge’s impartiality. Holland , 519 F.3d at 914. “If it i s a close case, the balance tips in favor of recusal.” Id. at 912.

Our sister circuits have identified several helpful factors to determine whether the trial judge should have recused
himself. The Ninth Circuit listed three in United States v.
Holland : (1) “[t]he defendant’s capacity to carry out the threat,” including whether the defendant has taken “concrete steps” or has accomplices; (2) “[t]he defendant’s demeanor and the context of the threat,” including whether the defendant was “serious in carryin g out the threat”; and (3) whether the “perceived purpose of the threat” was to “force recusal and manipulate the judicial system.” Id. at 914

- 15. Under the third factor, receipt of a threat from an “extrajudicial source” decreases the risk that the defe ndant is attempting to manipulate the process and accordingly “has a higher potential for generating a situation where the judge’s impartiality might reasonably be questioned.” United States v. Greenspan , 26 F.3d 1001, 1006

- 07 (10th Cir. 1994) (citing
Lit eky v. United States , 510 U.S. 540 (1994)). The Second
and Tenth Circuits have identified a fourth factor: whether the threat resulted in any conduct by the court other than matter

of

- course judicial rulings that could be viewed as prejudicial14

toward the defendant. See id. (reasoning that the district court’s decision to accelerate sentencing and its refusal to grant a continuance of the sentencing hearing “could have contributed to an appearance that the trial court was prejudiced against Greenspan” afte r receiving a death threat, as such measures made it “obvious[] [that the judge] took the threat very seriously”); Basc i a no , 542 F.3d at 957 (finding no error in refusal to recuse in part because the court did nothing, other than ruling against the defenda nt, that would “reveal partiality”). Underlying several of these factors is an understanding that the judge’s subjective response to an alleged threat is relevant to our determination of whether an independent observer would expect the threat to impact th e court’s rulings. See Greenspan , 26 F.3d at 1006

- 07.

Here, Appellants argue that the judge’s refusal to recuse “violated the spirit, if not the requirements of [ S ection] 455(a)” because (1) he continued to enforce the protective order, which implied that he believed Appellants were dangerous, despite his conclusion that there was no active threat against him and (2) the government continued to argue that the letter was threatening when it sought to introduce the
letter as evidence of Gutierrez’s conscious ness of guilt. Appellant s’ Br. 27

- 32. Applying the factors identified by our sister circuits, we reject these arguments.

It is true that Gutierrez had the “capacity to carry out” a threat, as he was a respected member of a violent international
criminal organization with a broad geographic reach. See
Holland , 519 F.3d at 914

- 15. And because the government discovered the letter during an unrelated investigation, it is highly unlikely that Gutierrez intended just to delay or disrupt the proceedings in thi s case or force the judge to recuse
himself. See Greenspan , 26 F.3d at 1006

- 07. Contrary to Appellants’ contention, however, the judge’s rulings on the15

protective order suggest no bias. The government introduced ample evidence regarding witness safety t o support the order, including witnesses’ testimony that MS

- 13 members would kill them for testifying, the seizure from one Appellant’s cell of jail records containing witnesses’ names and locations within the jail, and Cordova’s recorded telephone call
th reatening witnesses. See Basc ia no , 542 F.3d at 957; see also Liteky , 510 U.S. at 556 (Judicial conduct “consist[ing] of judicial rulings, routine trial administration efforts, and ordinary admonishments . . . to counsel and to witnesses” that “neither (1) rel[y] upon knowledge acquired outside such proceedings nor (2) display[] deep

- seated and unequivocal antagonism that would render fair judgment impossible” cannot form the basis for recusal.). This evidence stood in
contrast to the stale letter

– more t han a year old

– and nothing in the record indicates that Gutierrez or anyone else took affirmative steps toward carrying out any threat. See
Holland , 519 F.3d at 916. Further, although the government argued that the letter was threatening, the U.S. Mars hals and the judge credited Liliana’s statement that the letter had no threatening purpose and the judge requested no additional security for himself, his family, or the trial. See id. (noting that “[t]he district court did not consider the threats or
Hol land’s capacity to carry them out serious enough to refer the incident to the FBI, nor did he request additional security from the U.S. Marshal’s service”); cf. In re Nettles , 394 F.3d 1001 (7th Cir. 2005) (holding that recusal was required where
the defen dant made an unquestionably legitimate threat to bomb the Seventh Circuit courthouse).

The circumstances show that a reasonable and informed observer would not perceive the letter to give rise to a “significant risk” that the trial judge would “resolve th e case on a basis other than the merits.” Holland , 519 F.3d at 914.16

We therefore conclude that he did not abuse his discretion in declining to recuse himself.

IV.

Cordova, Gutierrez, and Sorto contend that the District Court’s decision to conduct a preliminary conference on jury
instructions in chambers

– outside of the ir presence

– amounted to a violation of their constitutional right to be present throughout their trial, and of Federal Rule o f Criminal Procedure 43. Appellants further argue that the District Court’s failure to create a record deprived them of eff ective representation before this C ourt.

A.

On the morning of November 29, 2010, the District Court
held an in camera , off

- the

- rec ord conference with counsel to
disc uss proposed jury instructions. When proceedings continued on the record later that afternoon, the District Court summarized what had occurred, noting that the judge and attorneys had met to review the latest draft of th e jury instructions “and to determine which, if any of them, required oral argument because of differences of opinion between the government and the defense with regard to the content of the instructions as currently constructed.” Trial Tr. 4 (Nov. 29,
20 10)

. The District Court reported that the “overwhelming majority of the instructions . . . were not controversial and didn’t require follow

- up discussion on the record and argument,” though he did acknowledge the “fairly sizable” list of potential instruc tions that did warrant follow

- up and advocacy on the record, “and that’s why we’re here right
now.” Id. No objection was made to the off

- the

- record nature of the proceeding at this time, and the District Court and parties proceeded to review the disputed instructions on
the record.17

Two years after the trial had concluded, appellate counsel requested a hearing to reconstruct the record of the November
29 in camera conference. During this hearing, the trial court, trial defense counsel, and the prosecuti on attempted to recount exactly what had occurred during the off

- the

- record conference, though the recollections were not much more informative than the District Court’s summary immediately following the conference. The District Court did reflect upon
the purpose for holding the instruction conference as it did, explaining that

the Court wanted to get in an informal setting where we could have a quick exchange back and forth, try to determine where there would be objections and
where there wouldn’t. And where there would be objections, then we would obviously come in to court and they would be voiced on the record and argued on the record; both sides could present their arguments.

Status Conf. Tr. 29 (Feb. 6, 2013). Counsel for the government agreed wit h the District Court’s recollection that “a lot of it was boilerplate” and without objection, id. at 30, but also noted that where there were substantive exchanges “we came back into the courtroom and we did it all over again
so that there was no misunderstanding as to . . . what positions either side had with respect to the . . . jury instructions, ” id. at 32.

B.

Because n o objection to the in camera discussion was
made

– either prior to the conference taking place, or once the proceedings resum ed on the record

– we examine this issue only for plain error. See United States v. Purvis

, 706 F.3d18

520, 522 (D.C. Cir. 2013). An appellate court may exercise its discretion to notice a forfeited error if there is (1) error, (2) that is plain, and (3) t hat affects substantial rights, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. ; accord Johnson v.
United States

, 520 U.S. 461, 466

- 67 (1997); see also F ED

. R.
C RIM

. P. 52(b). Appella nts have not shown plain error here.

A defendant’s constitutional right to be present during trial proceedings, while largely rooted in the Sixth Amendment’s Confrontation Clause, is protected by the Due
Process Clause of the Fifth Amendment in situations where the defendant is not actually c onfronting a witness or evidence against him. United States v. Gagnon , 470 U.S. 522, 526 (1985) (per curiam). A defendant has a due process right to be present “whenever his presence has a relation, reasonably substantial, to the fullness of his opportun ity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105

- 06 (1934), overruled in part on other grounds by Malloy v. Hogan , 378 U.S. 1 (1964); accord Gagnon , 470 U.S. at 526. Indeed, this Court has recognized that “due process clearly guarantees that the defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence.’” United States v. Gordon , 829 F.2d 119, 123 (D.C. Cir. 1987) (quoting Snyder , 291 U.S. at 108);
see also Kentucky v. Stincer

, 482 U.S. 730, 745 (1987) (“[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.”); Gagnon , 470 U.S. at 526; F aretta v. California

, 422 U.S. 806, 819 n.15 (1975) (“[A]n accused has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.”). But, as the Supreme Court
noted in Snyder , the right to be presen t is guaranteed only to the extent that a fair and just hearing would be thwarted by a19

defendant’s absence, “ and to that extent only .” Snyder , 291 U.S. at 108 (emphasis added). There is no guaranteed right to presence “‘when presence would be useless, or the benefit but

a shadow .’” Gordon , 829 F.2d at 123 (quoting Snyder , 291
U.S. at 106

- 07).

The right to presence has been codified in Federal Rule
of Criminal Procedure 43. Gordon , 829 F.2d at 123; see also
United States v. Harris , 491 F.3d 440, 452 n.5 (D.C. Cir. 2007). As relevant here, Rule 43 gives a defendant a right to be present at “every trial stage, including jury impanelment
and the return of the verdict.” F ED

. R. C RIM

. P. 43(a)(2). Certain exceptions, however, are ide ntified by the R ule. Notably, the Rule carves out an exception to the presence requirement when “[t]he proceeding involves only a conference or hearing on a question of law.” F ED

. R. C RIM

. P. 43(b)(3). In such a case, the defendant need not be present.
Id.

The application of the above authority to the instant case reveals several reasons why the District Court did not plainly err by holding its preliminary jury instruction conference outside the presence of Appellants.

First, there was no plain error un der the Due Process Clause. Appellants have failed to show that a fair and just hearing was thwarted by their absence from the preliminary jury instruction conference. See Gordon , 829 F.2d at 123. Appellants have not pointed to any objection they would have raised had they been present for the in

- chambers conference. Appellants have not demonstrated that their presence would have added anything to the discussion, nor have they shown that their presence would have had a reasonably substantial
relation to their opportunity to defend against the charges against them.20

Second, the preliminary jury instruction conference in this case falls within the “conference or hearing on a question of law” exception laid out in Rule 43(b)(3). See United States
v. Perez

, 612 F.3d 879, 883 (7th Cir. 2010) (“The content of jury instructions is a question of law, and as such the jury instruction conference, assuming arguendo it was a stage of trial, fell within the . . . exception for a conference or hearing on a question of law.” (internal quotation marks omitted));
United States v. Rivera , 22 F.3d 430, 438

- 39 (2d Cir. 1994) (“The content of the instructions to be given to the jury is purely a legal matter, and a conference to discuss those
instructions is thus a conference o n a question of law at which a defendant need not be present.” (internal citation omitted));
United States v. Sherman , 821 F.2d 1337, 1339 (9th Cir. 1987) (“We hold that a hearing outside the presence of the jury concerning the selection of jury instructio ns is a ‘conference or argument upon a question of law’ . . . .”) ; United States v. Graves

, 669 F.2d 964, 972 (5th Cir. 1982) (“A defendant does not have a federal constitutional or statutory right to attend a conference between the trial court
and counsel concerned with the purely legal matter of determining what jury instructions the trial court will issue.”);
see also United States v. Jones , 674 F.3d 88, 94 (1st Cir. 2012) (counsel’s meeting with judge to consider a response to a jury request for re

- inst ruction fell within the Rule 43(b)(3) exception). As recounted by the District Court and counsel both immediately after the hearing and two years later during the hearing to reconstruct the record, it is clear that the preliminary discussion of jury instr uctions sought only to identify agreement or disagreement on the lengthy proposed instructions, and thus only dealt with detailed and technical legal questions.

Finally, Appellants have failed to show prejudice in support of their claim that the off

- the

- re cord proceeding21

deprived them of effective representation. Ineffective
assistance of counsel can result when the court “interferes in certain ways with the ability of counsel to make independent
decisions about how to conduct the defense.” Strickland v. Washington , 466 U.S. 668, 686 (1984) (citing cases). But a violation of the right to effective representation requires a defendant to establish prejudice. See United States v. Gonzalez

- Lopez , 548 U.S. 140, 146

- 47 (2006). In order to prove prejudice, the defendant must show that there is a

“ reasonable probability ”

– “ a probability sufficient to
undermine confidence in the outcome ”

– “ that the result of the proceeding would have been different ” absent the alleged

error. Strickland , 466 U.S. at 694. While Appellants attack the reasoning behind the District Court’s decision to hold the preliminary jury instruction conference off the record, they have not demonstrated any probability that the result of the proceeding would have been any different had the con ference been held on the record. The absence of prejudice is particularly apparent here, where the in

- chambers conference
did not involve substantive discussion about the content of instructions, but rather involved only identifying the specific
instructi ons that were not agreed upon by the parties so that
substantive discussion as to those instructions could occur in the courtroom (and in Appellants’ presence ).

We nonetheless add a word of caution about conducting a jury instruction conference of this kind off the record. As Appellants have argued, off

- the

- record proceedings have the potential of impeding the ability of the appellate court to do its job. This ca se would have been much more complicated if the attorneys and the District Court had articulated conflicting recollections of what occurred off the record, or if Appellants
had claimed that the off

- the

- record discussion strayed from simply “we object” to s ubstantive discussion of grounds of an objection that was not later captured on the record, or if22

Appellants had claimed that an objection was overruled in chambers but the ruling was not repeated in precisely the same manner during the subsequent on

- the

- r ecord proceeding. In such a case, we would be presented with the awkward task of resolving a factual dispute about what happened below, a
difficult exercise for this Court. “There can never be effective appellate review if the reviewing court is not able to obtain a clear picture of the precise nature of the alleged errors in the
court below.” Lee v. Habib , 424 F.2d 891, 897 (D.C. Cir. 1970). As the Seventh Circuit has recognized in a case similar to this one, “[i]t is possible that this procedure could injure the defense if it obscured the nature of the objections made and reasons for giving the instructions.” United States v. Murphy , 768 F.2d 1518, 1536 (7th Cir. 1985). Fortunately, there was no violation of due process or Rule 43 in this case
becaus e Appellants have identified no prejudice from a conference that involved only discussions of undisputed questions of law and for which there was no dispute about what transpired off

- the

- record, but the risk that such a dispute
could arise in the future do es give us pause.

V.

Cordova, Gutierrez, and Sorto assert that they are entitled to a new trial because they were denied their right to two attorneys under 18 U.S.C. § 3005, even after the government filed notice that it did not intend to seek the death pe nalty. We find that the District Court’s dismissal of Appellants’ second appointed attorneys was neither contrary to the statute

nor an abuse of discretion.

A.

Appellants were indicted on June 10, 2008 for, inter alia

, murder in aid of racketeering in vio l ation of 18 U.S.C. § 1959(a)(1) , which can be punishable by death, id. Within23

approximately two months after indictment, each Appellant was appointed two attorneys.

The government filed notice on February 16, 2010, that it
did not intend to seek the death penalty as to each Appellant. At a hearing on March 18, 2010, the District Court announced that, following the government’s notice, it had consulted with the Federal Public Defender, who had indicated to the court that “since it is not going to be a death penalty case, the public is not required to pay for two lawyers for each defendant.” Status Conf. Tr. 8 (March 18, 2010). As such, the District
Court determined that Appellants , while welcome to have a second lawyer at their own expense, would onl y be appointed one lawyer “at taxpayer expense.” Id. Defense counsel argued in response that they believed that the status had not changed because the government was still seeking life sentences, the case was complex, and the second appointed lawyer was particularly useful in this case because they had one Spanish

- speaking lawyer and one non

- Spanish

- speaking lawyer for each Appellant (all of whom are native Spanish

speakers). The District Court assured defense counsel that
translation assistance would be made available as needed, and that, with respect to the second attorney, it was possible

– but not very likely

– that he would change his mind.

On May 12, 2010, Sorto sought reconsideration of the District Court’s decision in the form of a motion to ap point a second defense attorney pursuant to 18 U.S.C. § 3005. The District Court denied the request on June 24, 2010.

B.

We review questions of statutory interpretation de novo

. United States v. Wishnefsky , 7 F.3d 254, 256 (D.C. Cir. 1993). The proper meaning of 18 U.S.C. § 3005 is a matter of first impression in this Circuit. To the extent that Appellants argue24

that, even if not obligated by statute, the District Court should have exercised discretion to appoint a second attorney, we
revi ew that decision for abuse of discretion. See generally
United States v. Donato , 99 F.3d 426, 429 (D.C. Cir. 1996).

“As always, we begin with the text of the statute.”
United States v. Hite , 769 F.3d 1154, 1160 (D.C. Cir. 2014) (citing United States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989); United States v. Barnes , 295 F.3d 1354, 1359 (D.C. Cir. 2002)). “Where the language is clear, that is the end of judicial inquiry ‘in all but the most extraordinary
circumstance s .’” United States v. Braxt onbrown

- Smith , 278 F.3d 1348, 1352 (D.C. Cir. 2002) (quoting Estate of Cowart v. Nicklos Drilling Co. , 505 U.S. 469, 474 (1992)); see also
Caminetti v. United States , 242 U.S. 470, 485 (1917) (“It is elementary that the meaning of a statute must, in the fi rst instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms.” ).

With these principles in mind, we turn to the statutory
text at issue here:

Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, upon the defendant’s request, assign 2 such counsel, o f whom at least 1 shall be learned in the law applicable to capital cases, and who shall have free access to the accused at all reasonable hours. In assigning counsel under this section, the court shall consider the
recommendation of the Federal Public De fender organization, or, if no such organization exists in the25

district, of the Administrative Office of the United States Courts. The defendant shall be allowed, in his defense to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prosecution.

18 U.S.C. § 3005.

While a plain reading of the statute supports Appellants’ position that the trig ger to initiate and guarantee the right to a second lawyer is the return of an indictment of a “capital crime,” see United States v. Boone , 245 F.3d 352, 359

- 60 (4th Cir. 2001), such a reading does not answer the question in this

case

– that is, whether th e statute requires the retention of the second lawyer after the government has conclusively determined that it will not seek the death penalty. In this regard, the statute is silent and therefore ambiguous. See
Robinson v. Shell Oil Co. , 519 U.S. 337, 34 0 (1997) (“Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case .” (emphasis added)); see also United States v. Wilson , 290 F.3d 347, 353 (D.C. Cir. 2002) (“In determining the ‘plainness or ambiguity of statutory language’ we refer to ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’” (quoting
Robinson , 519 U.S. at 341)).

To address this ambiguity, we look to the statutory

purpose. Braxtonbrown

- Smith , 278 F.3d at 1352 (“Where the language is subject to more than one interpretation and the meaning of Congress is not apparent from the language itself, the court may be forced to look to the general purpose of26

Congress in enacting the statute and to its legislative history for helpful clues.”). We “must avoid an interpretation that undermines congressional purpose considered as a whole when alternative interpretations consistent with the legislative purpose are available.” Id. (citing United States v. Am. Trucking Ass’ns, Inc. , 310 U.S. 534, 543 (1940))

. “[E]ven when the plain meaning [does] not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’” we must “follow[] that purpose, rather than the literal w ords.” Am. Trucking Ass’ns

, 310 U.S. at 543 (quoting Ozawa v. United States , 260 U.S. 178, 194 (1922) ).

The language used by Congress suggests that the purpose of the statute would be best met by applying the mandate for two attorneys only as long as th e death penalty is actually being pursued. The statute demands that at least one of the two appointed counsel “shall be learned in the law applicable

to capital cases .” 18 U.S.C. § 3005 (emphasis added). The reference to “capital cases” is significant, because even though Congress did not define the term in this section, Congress has repeatedly used “capital case” to mean a proceeding in which the death penalty has been imposed or a case in which the death penalty is being or could be sought. See, e.g. , 18 U.S.C. § 3510(b) (right of victim to attend trial even if she may appear as witness at subsequent sentencing phase in a death penalty case); 28 U.S.C. § 2266 (special habeas corpus procedures for cases where a death sentence was imposed); 42 U.S.C. § 1 4163 (grants to states to improve representation in cases where a death sentence may be sought or has been imposed). The Supreme Court and lower federal courts have historically used the term “capital case” in the

same manner. See, e.g. , Wiggins v. Smith , 539 U.S. 510, 524 (2003); United States v. Parker , 103 F.2d 857, 861

- 62 (3rd Cir. 1939). Congress and the courts have imposed procedural27

safeguards in cases where the death penalty is at issue that are
distinct from the procedures required in non capital cases, see,
e.g. , O’Dell v. Netherland , 521 U.S. 151, 167 (1997); Gilmore v. Taylor , 508 U.S. 333, 342 (1993), because “there is a significant constitutional difference between the death penalty and lesser punishments,” Beck v. Alabama , 447 U.S. 625, 637 (1980).

Thus, by requiring that at least one attorney be “learned in the law applicable to capital cases,” Congress indicated that the purpose of the second lawyer is to provide additional support and expertise to defendants facing the possibility of
th e death penalty, precisely because defending those cases requires a separate and unique base of knowledge, training, and experience. Thus understood, the statute reflects Congress’s policy decision that defendants relying on appointed counsel need even mo re help

– and more specialized help

– when their life hangs in the balance. If the death penalty is not on the table for a particular case, such expertise is no longer absolutely necessary for a fair proceeding to result. Cf. United States v. Waggoner, 3 39 F.3d 915, 918 (9th Cir. 2003) (reflecting that “the purpose of the

two

- attorney right is to reduce the chance that an innocent defendant would be put to death because of inadvertence or errors in judgment of his counsel” (internal quotation marks
omitte d)).

Further support for this conclusion is found in the amendment history of the statute. The provision now found at 18 U.S.C. § 3005 was originally enacted as Section 29 of the Crimes Act of April 30, 1790, 1 Stat. 118

- 19. The provision
was included in the Revised Statutes at R.S. § 1034 (1878), and then placed in the United States Code at 18 U.S.C. § 563 (1925

- 26). In 1948, changes were made in phraseology, and the statute was moved from 18 U.S.C. § 563 to 18 U.S.C.28

§ 3005, see 62 Stat. 814. Throug hout this time, no truly substantive changes were made, and no discernable explanatory commentary was ever provided. See Boone , 245 F.3d at 365 (Kiser, J., concurring in part and dissenting in part) (noting “dearth” of legislative history); In re Sterling

Su á rez , 306 F.3d 1170, 1173 & n.2 (1st Cir. 2002) (stating that the court can only speculate about changes to the provision “[a]bsent legislative history”).

In 1994, Congress made the first substantive changes to the statute as part of the Viole nt Crime Control and Law
Enforcement Act of 1994. See Pub. L. No. 103

- 322, § 60026, 108 Stat. 1796, 1982 (1994). It was at this time that Congress imposed the requirement in Section 3005 that at least one counsel “learned in the law applicable to capital cases” be provided to defendants indicted for capital crimes. The amendment also opted for the word “promptly” in place of the word “immediately” as to the timing of counsel’s appointment, and further introduced the requirement that the
court consider co unsel recommendations of the Federal Public Defender organizations or the Administrative Office of the United States Courts. Concurrent with these changes, Congress also enacted the Federal Death Penalty Act of the
Violent Crime Control and Law Enforcemen t Act of 1994.
See Pub. L. No. 103

- 322, § 60002, 108 Stat. at 1959 (codified at 18 U.S.C. §§ 3591 to 35 98). Among other things, the Federal Death Penalty Act requires that the government serve
notice on a defendant charged with a death

- penalty

- eligible

o ffense indicating whether the government believes that the death penalty is justified in tha t particular case. 18 U.S.C. § 3593(a). Such notice must be made “a reasonable time before the trial or before acceptance by the court of a plea of guilty.” Id. The notice must: (1) state “that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified . . .29

and that the government will seek the sentence of death; and (2) set[] fort h the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.” Id. The Department of
Justice has established comprehensive death penalty procedures based on the Federal Death Penalty Act. See U.S

. D EP ’ T OF J USTICE
, U.S. A TTORNEYS ’ M ANUAL
, § 9

- 10.020 (April 2014)

.

This notice requirement underscores the importance of the “prompt” appointment of the second attorney in death

penalty

- eligible cases

– that is, before the government makes
its determination as to whether to seek a death sentence. Even among courts that disagree as to whether the second attorney is required after the government announces that it will not
seek the death penalty, there is agreement that “prompt” means promptly after indictment, and not later. This is because the goal of the defense in this early stage of the proceedings is to convince the Attorney General not to seek the death penalty in the first p lace. See, e.g.

, In re Sterling Suárez , 306 F.3d at 1173 (second attorney learned in the law of capital punishment “is likely to be especially useful in making and supporting arguments about mitigating and aggravating factors, primarily made at the stage when the Attorney General is determining whether or not to seek the death penalty and (still later) when the jury is determining the sentence”); Boone , 245 F.3d at 3 60 (“[T]he appointment of a second lawyer helps the defendant during this preliminary

proce ss when that investigation into relevant factors and presentment of information to the United States Attorney occurs. Surely, if the government decides not to seek the death penalty, then the penalty phase is won before trial, and a second lawyer has prov en his worth.”). While the death penalty is still on the table, there is a specific role for an attorney “learned in the law applicable to capital cases” to30

play in the defense, but once the Attorney General has made a
determination not to seek the death penalty, the requirement of counsel with such specialized expertise no longer serves that specific role.

Simply put, when we consider how federal capital prosecutions work in practice

– practices that were established in 1994 contemporaneously with the amendment requiring at least one lawyer to be “learned in the law applicable to capital
cases”

– it is clear that the c ongressional purpose is best served by reading Section 3005 to require two attorneys only while the defendant faces the death penalty as a potential option. Once the government has decided not to seek the death penalty, the trial court retains the discretion to keep or dismiss the second attorney, but it is not per se error for the
court to choose dismissal.

This conclusion is in accord w ith the majority of our
sister circuit courts that have considered the issue. See United States v. Douglas , 525 F.3d 225, 23 7 (2d Cir. 2008) (“[O]nce the government has formally informed the court and the defendant of its intention not to seek the death p enalty, the matter is no longer a capital case within the meaning of § 3005 and that section does not require the district court to continue the appointment of a second attorney.”); Waggoner

, 339 F.3d at 917

- 18 (term “capital crime” did not encompass
the u nderlying offense when capital punishment could not be imposed and thus government’s formal and irrevocable renunciation of intent to seek a conviction for capital murder justified denial of defendant’s motion for continued representation by a second court

- appointed lawyer); United
States v. Casseus , 282 F.3d 253, 256 (3d Cir. 2002) (any error
in the failure of the district court to act on the defendants’ requests to appoint death

- penalty qualified counsel was harmless where the requests were rendered moot by the31

government’s decision not to seek the death penalty); United
States v. Grimes , 142 F.3d 1342, 1347 (11th Cir. 1998) (defendant was not entitled to two court

- appointed lawyers where the government had stated, on the record prior to trial,
that it wou ld not seek the death penalty; court determined that at that point the proceeding was transformed from a capital
case into a non capital case); see also In re Sterling

- Su á rez , 306 F.3d at 11 75 (“[I]n this case there are practical reasons to
treat the case a s capital from indictment forward, for purposes of appointing learned counsel, until it becomes clear that the death penalty is no longer an option .” (second emphasis added)). Further support for our conclusion comes from those opinions interpreting Secti on 3005 in the wake of Furman v. Georgia , 408 U.S. 238 (1972). See United States v. Dufur

, 648 F.2d 512, 514

- 15 (9th Cir. 1980) (invalidation of death penalty provision in 18 U.S.C. § 1111 eliminated defendant’s right to two attorneys in prosecution for “capital crimes”); United States v. Shepherd , 576 F.2d 719, 727

- 29 (7th Cir. 1978) (holding that because “there is no possibility that the death penalty can be imposed,” this provision granting defendants a right to two counsel in capital cases was inapplicable); United States v. Weddell , 567 F.2d 767, 770

- 71 (8th Cir. 1977) (defendant accused o f murder was not entitled to appointment of second attorney where Furman precluded imposition of death penalty and case thus lost its capital nature); but see United States v. Watson , 496 F.2d 1125,
1127

- 29 (4th Cir. 1973) (offense of first

- degree murder s till a “capital crime,” and thus defendant charged with such offense had absolute statutory right to two attorneys on request, notwithstanding that under Furman the death penalty could not constitutionally be imposed).

The only circuit that has come to a d ifferent conclusion is the Fourth Circuit, see Boone , 245 F.3d at 359

- 60 ; Watson

, 496 F.2d at 1129 , but for the reasons stated above, we32

respectfully disagree with its conclusion that Section 3005 unambiguously mandates that the second defense attorney

mus t be retained after the prosecution irrevocably removes the possibility of a death sentence. For various reasons, such as the complexity of the issues or the amount of necessary investigation, it may be prudent for the District Court to allow
the second l awyer to continue to assist with the representation, but the statute does not require it. Other than arguing that the District Court was required by statute to retain two attorneys for each Appellant through trial

– a contention we reject

– Appellants hav e not identified any basis to find an abuse of discretion by the District Court in dismissing the second appointed attorneys, and we find none.

VI.

For the foregoing reasons, we affirm the judgment of the District Court with respect to the four claims add ressed
herein

.

So ordered.