United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2015 Decided November 24, 2015

No. 11-3034

UNITED STATES OF AMERICA,

APPELLEE

v.

WILLIAM CORDOVA, ALSO KNOWN AS MARIO, ALSO KNOWN AS 

CENTINELLA,

APPELLANT

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 

joint briefs for Appellants. Sherlock V. Grigsby entered an 

appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the 

cause for Appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney at the time the brief was filed, and 
2

Elizabeth Trosman, Elizabeth H. Danello, Gilberto Guerrero, 

Jr., and Nihar Ranjan Mohanty, Assistant U.S. Attorneys.

Before: TATEL, MILLETT, and WILKINS, Circuit Judges.

PER CURIAM: 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 opinion. 

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 treated 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 hierarchy. 

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 died.
3

On April 22, 2007, Cordova and Gutierrez struck again, 

this time joined by Sorto. In retaliation for an attack on MS13 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 group, 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 counts. 

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 disclosure 
4

after a government witness testifies on direct examination, id.

§ 3500(b); see also FED. R. CRIM. 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, Afternoon 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 the 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 shared 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 Marshals 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 jail, 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 counsel 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 next day, the 
6

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 there 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 

defendants 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 

[their] defense.” U.S. CONST. amend. 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 Appellants 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 order 
7

deprived counsel of the full benefit of Appellants’ individual 

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 assist 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.” FED. R. CRIM.

P. 16(d). Moreover, a “trial court can and should, where 

appropriate, place a defendant and his counsel under 

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 considerations 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[.]” FED. R. CRIM. P.

16(d) Advisory Committee’s Note to 1966 Amendment to 

Former Subdivision (e); see also 2 CHARLES ALAN WRIGHT &

PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE

§ 262 (4th ed. 2009). 

We ordinarily review a district court’s balancing of those 

factors in issuing a protective order for 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 court 
8

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. 1991) (“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 limitations 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 order’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 matter. 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.”); FED. R. CRIM. 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 conditions, 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 testified. 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 48 
10

(District Court assured defense counsel, “I am not going to let 

you be sandbagged”). The record does not indicate that any 

Appellant ever 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 crossexamined 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 Sorto 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 letter 
11

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 expert 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 located 

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 doctor’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). Therefore, 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 of 
12

Evidence 403’s balancing 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 Circuit 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 legitimate threat does not 

necessarily require recusal. In re Basciano, 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 United 
13

States 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 threat 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 is 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 carrying 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 defendant 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 

Liteky 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 matterof-course judicial rulings that could be viewed as prejudicial 
14

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” after receiving a death threat, 

as such measures made it “obvious[] [that the judge] took the 

threat very seriously”); Basciano, 542 F.3d at 957 (finding no 

error in refusal to recuse in part because the court did nothing, 

other than ruling against the defendant, 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 the 

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 [Section] 

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 consciousness of guilt. 

Appellants’ 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 this 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 the 
15

protective order suggest no bias. The government introduced 

ample evidence regarding witness safety to 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 

threatening witnesses. See Basciano, 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 than 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. Marshals 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 

Holland’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 defendant 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 the 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 their presence –

amounted to a violation of their constitutional right to be 

present throughout their trial, and of Federal Rule of Criminal 

Procedure 43. Appellants further argue that the District 

Court’s failure to create a record deprived them of effective 

representation before this Court. 

A.

On the morning of November 29, 2010, the District Court 

held an in camera, off-the-record conference with counsel to 

discuss 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 the 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, 

2010). 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 instructions 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 prosecution 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 with 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 no objection to the in camera discussion was 

made – either prior to the conference taking place, or once the 

proceedings resumed on the record – we examine this issue 

only for plain error. See United States v. Purvis, 706 F.3d 
18

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) that 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 FED. R.

CRIM. P. 52(b). Appellants 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 confronting 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 opportunity 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; Faretta 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 present is guaranteed only to 

the extent that a fair and just hearing would be thwarted by a 
19

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.” FED. R. CRIM. P. 43(a)(2). 

Certain exceptions, however, are identified by the Rule. 

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.” FED. R. CRIM. 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 under 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 on 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 instructions 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-instruction 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 instructions 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-record proceeding 
21

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 conference 

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 

instructions 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 case 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 substantive discussion of grounds of an 

objection that was not later captured on the record, or if 
22

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-record 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 

because 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 does 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 penalty. 

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 violation of 18 U.S.C. 

§ 1959(a)(1), which can be punishable by death, id. Within 
23

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 only 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 Spanishspeakers). 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 appoint 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 argue 
24

that, even if not obligated by statute, the District Court should 

have exercised discretion to appoint a second attorney, we 

review 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 

circumstances.’” United States v. Braxtonbrown-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 first 

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, of 

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 Defender 

organization, or, if no such organization exists in the 
25

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 trigger 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 the 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, 340 (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 of 
26

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 words.” 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 the 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. § 14163 (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 procedural 
27

safeguards in cases where the death penalty is at issue that are 

distinct from the procedures required in noncapital 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 

the 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 more 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, 339 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 

omitted)). 

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. Throughout 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 SterlingSuárez, 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 Violent 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 counsel 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 Enforcement Act of 1994. 

See Pub. L. No. 103-322, § 60002, 108 Stat. at 1959 (codified 

at 18 U.S.C. §§ 3591 to 3598). Among other things, the 

Federal Death Penalty Act requires that the government serve 

notice on a defendant charged with a death-penalty-eligible 

offense indicating whether the government believes that the 

death penalty is justified in that 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[] forth 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.

DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL, § 9-10.020 

(April 2014). 

This notice requirement underscores the importance of 

the “prompt” appointment of the second attorney in deathpenalty-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 place. 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 360 (“[T]he appointment of a 

second lawyer helps the defendant during this preliminary 

process 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 proven 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” to 
30

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 congressional 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 with the majority of our 

sister circuit courts that have considered the issue. See United 

States v. Douglas, 525 F.3d 225, 237 (2d Cir. 2008) (“[O]nce 

the government has formally informed the court and the 

defendant of its intention not to seek the death penalty, 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 underlying 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 the 
31

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 would not seek the death penalty; court determined that 

at that point the proceeding was transformed from a capital 

case into a noncapital case); see also In re Sterling-Suárez, 

306 F.3d at 1175 (“[I]n this case there are practical reasons to 

treat the case as 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 Section 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 of 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 still 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 different 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, we 
32

respectfully disagree with its conclusion that Section 3005 

unambiguously mandates that the second defense attorney 

must 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 lawyer 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 have 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 addressed 

herein.

So ordered.