## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 04-17 47

___________ United States of Americ a, *
* Plaintiff - Appellee, * *
v. *
* Shawn L eo Barth, * * Defenda nt - Appel lant. *

___________ Appeal from the United States No. 04-16 09 District Court for the

___________ District of North Dakota United States of Americ a, * * Plaintiff - Appellee, * * v. * * Rosalio Gu itron-Varg as, also kn own * as Grego rio Are chigo Vel asco, al so * known as Jos ue Efrain Nino, * * Defenda nt - Appel lant. *-2- __________ No. 04-16 81

__________ United States of Americ a, *
* Plaintiff - Appellee, * *
v. *
* Nancy Elizabeth Fernea

u *

* Defenda nt - Appel lant. *

___________ Submi tted: Nove mber

17, 2004 Filed: Septem

ber 14, 200 5

___________ Before M URPHY , HAN SEN, and MEL LOY, Circuit J udges.

___________ MELLOY, C ircuit Judge.
This acti on is a consoli dated appe al follow ing the convictions of Shawn Leo Barth, Rosalio Guitron V argas, a nd Nancy Elizabe th Fernea

u. Each individual was found guilty o f conspira cy to di stribute a nd to possess with in tent to dis tribute metham phetamine. Barth w as also fou nd guilty of possessi on with inten

t to distribu

te metham phetamine, distributio n of m etham phetam ine, posse ssion of marijua na with intent to distribute, possession of a firearm in furtherance of a

drug trafficking crime,1 The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota. -3- and being a fe lon in

possession of a firearm or am munition. In addition, Vargas was found guilty o f distribut

ion of m etham

phetam ine, distr ibut ion o f ma

rijuana , and possess ion of a fire arm by an illegal alie n.
The consolidate d appeals r aise over lapping issue s. Bart

h argues th a t : 1) the evid ence est ablished m

ultiple conspiracies while the indictm ent allege d a single
con spi racy; 2 ) the ev idence w as insuffi cient to support the co nspiracy conviction; and 3) Blakely

v. Wa shington , 124 S.Ct. 2531 (2004), requires the fa cts of his pa st convictions be submitted to the jury if they are used to enhance his sentence. Vargas argues that: 1) th e evidence establishe d multi

ple conspiracies, b ut the indic tment allegeda si ngl e co nsp irac y; 2) the districtcourt viola ted his righ

ts under Fe deral Rul e of Criminal Proc edure 43 w hen it conducted a

status conf

erence o utside of hi s p resence; and 3) the distr ict court erred when it faile d to adm onish the j ury not to discuss the case when it recessed

. F erneau argues that: 1) the evidence was insuffici ent

to support the

conspirac y convi ctio n; 2) t he district court violated her rights under Fed eral Rul e of Criminal Proc edure 43 w hen it conduc ted a statu s conference without he r present ; 3) the cou rt erre d when it f

ailed to admon ish the jury not to discuss th e case when it took rec esses; and 4) the cour t erred in refusing to give Ferneau a min or partic ipant reduc tion at sent encing. In addition , this cour t asked for supplemental briefing f

rom all of the de fendants r egarding po ssible Blakely claim s. We af firm the judgm

ent of the d

istrict c ourt in eac h appeal. 1

I. Bac kground
This case arises out

of an alle ged conspiracy t o distribute drugs, in particular metha mphet amine , in the B ismar ck, Nor th Dakota area. Viewin g the evide nce in a ligh t fa vorable to the government shows the following. Initially, the drugs were-4-

obtain edin Iowa, but eventually they we re brought into North Dakota fro m Washington state. T

he distribut

ion activit

y princ ipally

involved Sha

wn Barth , Rosalio Varga s , Nancy

Ferneau , and per sons they emplo yed to t

ransport dr

ugs on their beh alf . Th e de fen dan ts pu rch ase d met hamp het amin e an d ma riju ana to sell in Bismarck and the surrounding area. Ferneau often permitted her re sidence to be used as a distri bution point. Thes e events oc curred betwee n 1999 an d 2003.

Barth ’s efforts to distribut e me thamp hetamine in Bismarck began when he and Blai n e Martinez

purchase d meth amphe tamin e in Iowa and transp orted it to Bisma rck. On each tri

p, they purchased

one pound of m

etham phetam ine. Upo n returnin g to North Dakota, they divided the dru gs into sm aller qua ntities, d istributed them, and split th e proceeds.

In February 2000, Martinez inform edBarth thatVargas had me thamp hetamine available for purchas e. Barth met Va r gas at Na ncy Ferneau’ s home

in Bism arck, where Mar ti nez als o re si ded at t hat time . Ma rtinez and Barth purchased metha mphet amine

from Vargas at this m

eeting, and approximately f our or five other times between

Februar y 2000 a nd April 20 00, in one po und quantitie s.
In May 2000, V arg as hired R igoberto F ernandez -Castillo (“F ernandez ”) to transport meth amph eta min e an d ma rijuana from Washing ton state to Bism arck for later sale by Barth and Ferneau in exchange for $1,000 per trip. V argas suppl ied the vehicles f or the tra nsportation

of the drug s.
Fernandez subsequentl

y m ade eight t

rips b etwe en Washington and N orth Dakota, and was a ccom panied by

Vargas on three of

th em. On each trip he transported two pounds of me thamp hetamine and three to five pounds of

marijuana. Vargas told Fern andez to br ing the drugs to Fernea

u’s home so that F erneau c ould assist in distribut

ing the drugs f

rom t here. E ach tim e, Fer

nandez bro ught the drug s to Ferneau’s home. After Fernandez trans ported the drugs to Ferneau’s home,-5-

Ferneau assisted Fernandez in dividin g the drug s. Fe rneau wo uld then make telephonecalls, and shortly thereafter individuals w ould com e to pick up t he drugs. Ferneau would provi de various buyer s with marijua na, m etham

phetam ine, or bo th. Duri ng this process, Fernandez never witnessed the actual exchange of drugs bet wee n Ferneau and Barth . Howe ver, hedid observe Barth ent er Fern eau’s h ome a ndgo into the room where th e drugs were kept. Fernande z also wit nessed exc hanges of dr

ugs, weapons, and other items between Vargas and Barth . Afte r all of the drug s were s old, Ferneau would pay

Vargas for

the drugs. On som e occasio ns Vargas would arr ange for Fernand ez to bring the money back to Varg as’s home in Washing ton. Vargas, Barth, and Ferne au continue d to obtain a nd dist ribute drugs throug hout 2000. Fernande z continued to act as co urier unti l his arre st for tra nsporting drugs in September 2000

.
On A pril 5, 200 1, Vargas was arres ted in Man dan, North Dak ota. He wa s prosecuted for an imm

igration violation and deported on June 29, 2002. Vargas returned to the UnitedStates la

ter that s ummer. Up on his retur n, Varg as and

Barth immediately resumed distrib uting methamphet amine.
The followin g year , Barth moved from Bism arck to O liver Count y, N orth Dakota. There, Barth m

oved in w ith a dairy farm worker named W

illiam Canada. Barth brought Vargas and another Hispanic male with him to Canad a’s re si dence. Barth “fr onted Cana da” m etham ph etamine, mea

ning Canada

had to sell the metha mphet amine

and then re pay Barth from the pro ceeds. In No vembe r 200 2, Canada was arr est ed on unrelate d charges . Canada gave Bar

th the key s to his residence to return to the property ow ner. In stead of returning the keys, Barth moved int o th e res ide nce in Ol ive r Cou nty.
Barth continued to distributemetha mphet amine

from Cana da’s residence. In Marc h 200 3, Barth

sought the a ssistance of Jam es Chrisik os to distrib ute2 C hri sikos was infor med th at the polic e had a wa rrant for his arre st at a previously

scheduled m

eeting wi th his probation officer. He was then detained until the searc h was com

pleted. -6- metham phetamine. Barth of

fered to provide Chr

isikos a vehi cle and m

oney if he sold drugs for Barth. Barth s howed Chris ikos arou nd the Can ada residen ce. He showed him a utility trail er where he kep t marijuana, methamphetamine, and a handgun

.
On approxim

ately March 24, 2003, Chrisikos, Ryan Brelje, and another man sought to purchase metham

phetam ine fro m Barth. Chrisikos went to the residence to make the purcha se. When he arriv ed, he saw a white minivan outside the residence and Barth m eeting wi th two peopl e. Dur ing the m eeting, B arth

and the tw o people exchanged somet

hing. Foll owing the e xchange, Barth ent ered Chr isikos’ s vehic le and gave Chrisikos a

package of

metha mphet amine . He tol d Chrisikos t hat the drugs had j ust arrived and that he had paid ten to fifteen thousand dollars for the d rugs
. Barth gave Chri sikos one ounc e of m etham phetam ine and som

e ma rijuana for his personal use and told Chr isikos to assi st in distrib uting the re st of the drugs Barth had purchased

.
Soon after this purchase, the police detained Ryan Brelj e. At that time, Brelje
was in possess ion of app roximately ten grams of methamphet amine. Brelje told the police abou

t Chrisikos and his role in the distribution of methamphetam ine. Based
on this inform

ation , th e police obtained a search warrant for Chrisikos’s residence. Atth e re si den ce t he p ol ice fou nd mari jua na a nd meth amp he tamin e. Following the search, the police interviewed Chrisikos. 2 Chrisikos told the police about Bar th, the Oliver Coun ty residence, th e drugs, th e trailer, and the handg un.
Based on the infor

matio n from

Chrisikos, the police pur sued Bart h and Var gas. The police executed

a searc h warra

nt on Canada ’s resi dence, w here Bar th was living. Inside the utility

trailer Barth had

shown to Chrisikos, officer s found a ha ndgunand3 The case against Ferna ndez did not p roceed to trial. The gover nm ent an d Fern and ez en tere d in to a ple a ag reeme nt i n ex cha nge for h is t est imon y. -7- amm unition, marijuana, and other d rug parap hernalia . The tr ailer bel onged to B & B Roofing, a business r

un by Ba rth’s br other, f or which B arth peri odically worked. Inside the residence and a p ickup truck at the re sidence, the officers found marijuana, metha mphet amine

an d titles t o cars pur

portedly involved in th e distribution of the drugs. The next day, Deputy Sheriff Dion Bitz stopped Vargas in one of the ca

rs for which officers had found title i n their sea rch of the residenc e. Wh en questione d, Vargas c laime d that the c ar belonge d to his nephe w, Juan Quintero, and that he did not kno w Barth. Vargas ad mitted that he was in the Uni ted States illegall y.
O n Jul y 9 , 2003, Barth, Vargas, Fernea u, Fernandez, and Thoma s Pinks, Jr.
were name d in a

multi-count indictment. The fir st count all eged that b etween A ugust 1, 1999 and the date of the indictment, the defendants and “others” co nspired t o possess metha

mphet amine

with an int ent t o distributein violation of 21 U.S .C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Counts two throug h six alleged th at Barth: 1) possessed metha

mphet amine

mixtur e with intentto distribut e; 2) actually distributed metham phetamine; 3) possessed mar ijuana with an intent to distribute; 4) possessed
a firear m in f urtheran ce of a dr

ug traffi cking crim

e; and 5) was a fe lon in possess ion of a firearm and ammunition. 21 U.S.C . § 841(a)(1 ); 18 U.S.C. § 2; 1 8 U.S.C. § 924(c)(1)( A) and (2); 18 U.S.C. § 922(g)(1) ; 18 U.S. C. § 924(a )(2) and ( e). Coun

ts
seven through nine

alleged thatVargas distributed metha mphet amine

and ma rijuana and unlawfully possessed a fire arm based on his status a s an illegal alien in t he UnitedStates. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2; 18 U.S.C . § 922(g)(5)( A); 18 U.S.C. § 924 (a)(2 ).
The case proc eeded to tr ial on Dec embe r 8, 2003. 3 A pretrial conference regardin g how the trial would proceed was held o n Decem

ber 5, 2003 , outsideof the pre sence of the def

endants. The defendants obj ected to th eir absen ce. Th e jur y-8-

returned a verdict on Decem

ber 18, 2003. All of the

defendant s except P inks, who was acquitt ed, were convi cted on all counts o f the indi ctment.
II. Di scussion A. Conspi

racy Partici pation Appellant s Bart h an d Var gas ass ert t hat the y were prej udi ced by a varia nce betweenthe gover nment ’ s indictment that al leged a sin gle conspiracy a nd the evidence offere d at trial

which the y alle ge showed m ultiple conspiracies . Acco rding to these defendants, they werecharged with one c onspiracy

that existe d continuously from August 1, 1999 until July 9, 2003, but the evidence presented attrial supported the existence of multiple conspiracies. Barth suggests that the evidence indicates the existence of

at leas t three se

parate c onspiracie s, while Vargas alleges th at the evidence s hows at leas t two separat e conspir acies.

We are not convinced that there were multiple conspiracies. In fact, s ignificant evidence exists to suggest the exist ence of a sin gle consp iracy, i nvolving th e sa me drugs and subs tantiall y the same people, that lasted sev eral y ears. R egardles s of whether there w as a single

conspirac y or m

ultipl e co nspiracie s, “ [w]e will rev erse only if we f ind the evidence add

uced at tr ial does not

support a f

inding of a s ingle
co nspira cy, and we determine [t he defenda nts were] prejudi ced by the varia nce.” United States v. Benford , 360 F.3d 91 3, 914 (8t h Cir. 2004 ).

We review a llegatio ns of a var iance for harmless error, and “ [r]ev ersal is warranted

only if the variance infringed a defendant’s substantial rights.” Fed. R. Cri m. P. 52(a

); see United St ates v. G

hant , 3 39 F.3d 66 0, 662 (8t h Cir. 2003 ), cert. d enied , sub nom Nichols v. United States , 540 U.S. 1167 (2004). A variance infringes a defenda

nt’s subst antial ri ghts when:-9-

(1) the defen dant could no t r eas onably have antic ipated fr om the indictm ent

the evidence to be presentedagainst him; ( 2) the indic tment is so vague t

hat there is a possibil ity of

subsequent p rosecution

for the same offense; or (3 ) the defe ndant was prejudic ed by a ‘spillover’ of evidence from one conspiracy to another.
United States v. Jones , 880 F.2d 55 , 66 (8th Ci r. 1989).
Here, any va

riance th at ma

y have occurre d did

not infring e on the substantial rights of either

Barth or Vargas. Neither defendant

alleges no tice or dou

ble jeopa rdy claim s. When th ere are

not notice or double je opardy

issues, “ a varianc e between the i ndictm ent

date and th e proof at

trial is no t fatal so long as the acts charg ed wer e committed within the

statute of limit ations per

iod, and pr

ior to the return date

of the indictment.” UnitedStates v. Stuckey , 220 F.3 d 976, 982 (8 th Cir. 20 00). Bar th and Vargas did not raise a statute of limitations issue and all of the activities occurred before the indictm

ent was ha

nded down. Thus, the

only pos sible issuein this case is whether the defen dants wer

e preju diced by

the spillover of evide nce, tha t is to say the jury’s inferenc e of

guilt based on evidence not rela ted to t hat defe nda nt’s con spi racy. Only Barth ra ises an all egation of prejudic e from the sp ill over of evidence. However, he faced little or no risk of prejudice from spillover evidence beca us e he
was involved in all stages and aspec ts of the c rime s comm itted. Regardles s of how many conspiracies the gover nment alleged were com

mitted, it presented evidence that Barth was in vo lv ed i n al l o f th em. See, e .g. , Ghant , 339 F.3d at 664 (noting that even if there were m

ultiple conspiracies, sufficient evidence supported a finding that the defendant participa ted in all of

them) . He ca

nnot contend that he was prejudice d by his own actio ns. Bar

th “cit ed no casein which, despite ev idence tha t the defe ndant participatedin all of the conspiracies, a variance between the number of conspiracies ch arged and the number proven was found to have prejudiced the defendant.” Id. Even if there

were m ultiple conspiracie s in th is case, “the y we re close in tim e and similar to each oth er,” and thus evidenceof Barth’ s particip ation likel y woul d have-10-

been admitted

under Fed eral Rule

of Evidence 404(b) because it “would have been probativeof his i ntent t o participate in the other [conspiracy].” Ghant , 339 F.3d at 664.
Barth

cites Kotte akos v. United States , 328 U. S. 750, 7 76-77 (1946) , for the proposition

that prej udice exist ed. In Kotteakos , the Cou rt foun d that prejudice existed because t

he distric t court failed to givesufficient instruction to pre vent the jury from imputing to each d efendant the acts and st atem ents of the other d efendants

. Id. at771, 776-77 . In that type of situation th ere is a d anger “ of transf erence o f guilt from one to a nother across the line separating conspiracies.” Id. 774. The case before us is d is ti ng ui sh abl e fr om Kotteakosbecause t he district court gave a specific cautionary

instruction and because the conspiracyin this case was not as complex as the situation

in Kotteakos . This c ase involve d fewer participa nts and fewer degrees of attachment to comprehend and consider

. The p ossibility of prejudice is diminished by c haracteristics of this case that make it not “ a particularly

‘com plex’ one or on e dealing with ‘com plicated o r confusing’ transacti ons.” Ghant , 339 F.3d at 66 3 (quoting United St ates v. H all , 171 F.3d 1133, 1150- 51 (8th Cir . 1999) ). T he evidenc e in this ca se was e asy to compartm entalize into certa in tim e periods. All possibl e conspiracies involved the
same drugs, loc ations of

supply, mea

ns of transportation, and points of distributio n. Barth ’s part ici pat ion in t he c ons pir acy, in particular, is e asy to identify and separate from that of the

other cons pirators.

Even if we be lieve ther e was a r isk of prej udice, w e are co nfident tha t the limiting instructio n in this cas e “pr eve nt ed the ju

ry fr om [i mprop erly] transfer ring guilt . . . .” United States v. Snider , 720 F.2d 98 5, 990 (19 83). The district court gave the instruct ion from the Eigh th Circuit Model Jur y Instruction s. See Eighth Cir cuit Manual of Mode l Jury I

nstructions - Crim

inal § 5.06( G) (W est 2003) ( instructing juries in cases dealing with single or multiple conspiracies to compartm entalize-11-

evidence). We bel ieve this instruction conveyed the law o f our Circuit as set forth in UnitedStates v. Jackson , 696 F.2d 57 8, 585-86 (8th Ci r. 1982). The use of this instruction

p rovid ed strong pr

otection a gainst pre

judice f rom a ny spill over of evidence.

Fin all y, the argum ent that the jury was conf used, or B arth was prejudi ced, by the spillover o f evidenc e is wea kened by the fact that the jury

found one de fendant, Thomas Pinks, not

guilty. Combined with th e cautiona ry inst ruction, this ve rdic t shows that th e jur y w as able to compartm entalize the evidence against each defendant

. Accordi

ngly, we concl

ude that, in this case , eve n a ssuming a variance, none of the defendant s were p rejudic ed by it

. B. Sufficiency of the E

vidence

Barth and Ferne au allege

the eviden ce is insuf

ficient t o support the ir convictions

. The applicable standard of review is “ver y strict.” United St ates v. Sanders , 341 F.3d 809 , 815 (8th Cir. 2003). W hen exam ining the suf

ficiency of the evidence, we review the evidence i n a light most fav orable to t he verdict

. United States v. Tensley , 33 4 F.3d 790, 793 (8th Cir. 2003). Accordingly, if “ any rational trier of fact c ould have found the e ssential e leme nts of the cr ime beyond a r

easonable doubt,” we m

ust uphold theconvicti on. Miller v. Lock , 108 F.3 d 868, 870 (8 th Cir. 1997); United States v. Dabney , 367 F.3 d1040, 1042 ( 8th Cir. 2 004) (stat ing that the jury’s decision

should be re versed “ only if no reasonab le jury

could have found [the defendant ] guilty” ). “ We re solve evide ntiary conflicts in favor of the governm ent and accept all reas onable inferences dr awn from the evide nce that sup port the ju ry’s verdict.” Tensley , 334 F.3d at 794.

Ferneau contends tha

t there is no credibl e evidenc e that a reasonable jury could find sufficient to prove b eyond a reasonab le doubt

that she knew the purpose of the
con spi racy. Fernea

u argues t hat although

the jury determ ines the cr

edibility of-12-

witnesse s, no reasonable jury cou ld have bel ieved the t estim ony of F ernandez and James Rhone, w

ho also helpe d transport

d rugs for the conspiracy. In particular, Ferneau points to Rhon e’s sta

teme nts that, a

t all costs, he was not

going back to jail. She also points t o the fact that Fernandez made a deal with the prosecution to testify in exchange for a plea

agreement. Moreover, she asserts that she presented evidence that she was not invo lved with metha mphetamine.
The evidence in this case suppo rts th e jury ’s finding that Fer neau knew

the purpose of the conspiracy and knowingly joined the c o nspiracy to distribut e metham phetamine. The jury had the o p portunity to hear c onflicting testim ony regardin g Ferneau’s knowledge. Martinez and a num ber o f other p eople involved with the defendant s testified that Ferneau lacked knowledge. The government offer e d t he test imony

of Ferna

ndez and Rh one as to Ferneau’ s knowledge of, and participa tionin, the conspiracy. In particular, F ernandez testifie d regarding how he tra nspo rted

metham phetamine to Ferneau’s house where Ferneau and Fernandez would divide up the drugs for distribution and how Ferneau would ca ll ind ividuals to pick u p the drug s from her residen ce.
The gov ernm ent also offe red num erous exhib its corrob orating the testimony of Fernande z and Rhone . The gov ernm ent produce d statements by Ferneau to a DEA agent in which Ferneau admitted her knowledge of V argas ’ and Fe rnand ez’s involvem ent

in drug tra fficking. The government also presented her admission that she purchased

cellular phones f orFernande z and Var

gas. Fur ther, the governm ent presentedFerneau’s admission that she attempted to retriev e, at V argas’ s request, the car in which F ernandez was arrested th at contain ed methamphetamine.

Itis not the pr

ovince of t

his court to weigh the

evidenc e for

and against Ferneau

. Rather, we give si gnificant weight to t he jury ’s dete rmina

tions as to th e credibili ty

of witness es. United States v. Meza-Gonzalez , 394 F.3 d587, 592 (8th Cir. 2005). Taking the

evidence in a ligh t most favorabl e to the ver dict, the witness-13-

testim ony and other exhibits constitute enough evidence to find, as the jury did, that Ferneau kne w the purpo se of the co nspiracy.

Barth contends tha

t th ere is in sufficie nt evidence to convict h im of

: 1) possession

of m etham

phetam ine with intent t o distribute; 2) distribution of marijuana; 3) pos s ession of m

arijua na with int ent to distr

ibute; 4) po ssession of a firea rm in furtherance of a drug trafficking crime; and 5) bein g a felon in possession of a firearm and amm unition. B arth, li ke Fer neau, is m erely asking this C ourt to rew eigh the evidence pr ese nted at tri al and evaluate the c redibility of witnes ses, whi ch it is not
our place to do

. Id. The ju ry had the opportun ity to e valuate th e credibi lity of witnesses against Ba

rth, incl uding Chrisikos, and the

mer it of the e vidence presented. As we state d earlier , we give significa nt weight to the jury’s determ inations re garding witness credibili ty. Id. The gover nment presente d additional

evidenceto corrobo rate Chris ikos ’s test imony , including physic al evidenc e from

the Canad a residen ce and Chrisik os’s apart ment. The se ite ms inclu ded d etail ed acc ount s of Ch risik os’s partners , amoun

ts of drugs a

nd mone y, a

ndlocations o f guns and

cars, all releva

nt to Barth ’s participa

tion. Moreover, t

he governm

ent offered the testimony of others familiar with Bar th’s purchase and

distribution of methamphetam ine and marijuana, including Raymond Kershaw and Lesl ie Beneke Sch midt. Again, the jury w as able to make credibili ty determina

tions rega rding the testim

ony of t hese witn esses, and we give significa

nt deference to its e valuation. Taking the evidence in Barth’ s case in
a light m ost favora

ble to the verdict, there was more than enough evidence to convict Barth.
C. Sixth Amendment Right to Be Present at Trial

We review wheth er a t rial cour t conducted

a procee ding in violat

ion of defendant s’ r ight to be present during every stage of his tr ial under a

n abuse of discretio n standard

. United St ates v. Shepherd , 284 F.3d 965, 967 (8th Cir. 2002).-14-

If a proceeding was conducted in violation of this righ

t, it is sub ject to h arml ess error analysis. Id. at 967-68.

A criminal defendant has a constitut ional right

to be present duringevery stage
o f his t rial. U .S. Con st. amend. VI ; Illinois v. Allen , 397 U.S. 337, 3 38 (1970 ). However, “[t] he right to b e present at all pha ses of a c riminal trial is not abs olute.” Shepherd , 284 F.3d a

t 967. Thi s right and i ts lim itations have been codified in Rule 43 of the Federa l Rules of Criminal Procedure. Rule 43(b)(3) states that “[a] defe ndantnee d no t be pres ent . . . [d uri ng a ] pro ceed ing [whi ch] i nvo lve s on ly a conference or hearing on a questi on of law.” Id. Therefore, the defendant’s presence is not required at a conference re garding t rial proced ure. See, e .g. , Cox v. U nite d States , 309 F.2d 614 , 616 (8th C ir. 1962) (“It is not unusual for a judge to call counsel into cham

bers and di scuss m atters of evidence , the for

m of q uestions, i

nstructions proposed, and other m

atters loo king to a m

ore order ly tri al, wit

hou t having a defendant present. ”). Th ese ty

pes of discussions are “not pa

rt of the t rial wit hin the meaning of Rule 43.” Id.
Vargas and Ferneau assert that they should have been present because factual issues were di scuss ed an d because the discussion regarding potential witnesses constituted a discussio n of fact ual issues. In th is case, the pretr ial proce eding involved discussion of

: 1) the voir

dire proc edure to b e follo wed by the court; 2) production

of the government’s witness and exhibit lists to the Court by the start of trial; 3) the amount of time required for opening statements and the daily trial schedule; 4) the procedure for handling object ions to trial evidence

by one o r

more defendant s; and

5) parties’ object ions to t he court’s pr oposed ju ry instructio ns. No te stimon y was hear d or discusse d, and no de cisions re garding the admis sibili ty o f evidence nor objec tions to jury instructio ns were made . Appell ants’ a rgument fails because the conference only concerned how to conduct the trial in an orderly m anner. Itdid not involv e a di scussion of questions of fact. Accordingly, the pretrial-15-

conference addressed questions of law, thereby m aking the def endan ts’ presence unnecessary. Fed. R. Crim. P. 43(b)(3).
D. Jury Separat ion
Vargas and Ferne au also ar gue that the district court committed error w hen it occasionally

failed to admoni sh the jur y not to d iscuss the c ase among them selves or with other s.
Itis essentia

l to a fair trial, c ivil or cr

iminal, that a

jury be cautioned as to permissible cond

uct and conversat ions ou tside th e jury room. . . . It is fundam ental that

ajury be caution ed from

the beginnin g of a trial and generall y throughout to keep their consi derati ons confide ntial and to avoid wron gful and of

ten subtle s uggestions of fered by outsiders.
UnitedSta tes v. Wi ll iams , 635 F.2 d744, 745-46 (8th Cir. 1980). N everthel ess, this Court stated in Kleven v. United St ates , 240 F. 2d 270, 274 (8th Cir. 1957), that “[w ]hile this Court h as pointed ou t the vital impor

tance of p r oper adm on itions to a jury . . . we have never he ld . . . that s uch admonition must be repeated at every recess, and we do n ot believeit is error to fail to do so when, as here, the Court had
e arlier gi ven a continuing admonition to the jury.” In the present case, the district court admonished the jury on num erous occasions. It is uncontested that the court warned the jury on at least

twenty occasions, but did not do so on at least eleven occasions. The insta

nces in wh ich the j ury w as not give n a n admo nition only occurred during m id-mo rning or m

id-after noon reces ses when t

he jury did not leav e the cou rth ou se. The re i s n o cl aim o f pr eju di ce f rom f ail ure to admo ni sh the jury before an ov ernight s eparation

.
We held in United St ates v. Weatherd , 699 F.2d 959, 962 (8th Cir. 1983), and UnitedStates v. McGran e , 746 F.2d 632, 635 (8th Cir. 1984), that repeated admonitions, even if not

given in every instance, adequately c autioned the jury as to-16-

its obligations. We stated that “ [i]n lig

htof the repeated

admonitions, we are satisfied that the juro rs were

adequate ly appr

ised of the ir duty

not to discuss the case outside the jury room.” Weatherd , 699 F.2 d at 962; see McGran e , 746 F.2 d at 635 (finding that ten admonitions “adequately cautioned the jury

concerning its o blig atio ns”). We cannot say that there was prej udice in this ca se. T he jurors were sufficiently apprised of their duty

such that th e dist

rict cou rt’s failure to admonish the jury on every occasion does not constitute reversible error.
E. Minor Partici pant Reduc tion

Ferneau argues that the court erred in refusing t o give a m inor parti cipant reduction upon sentencing. We review a district court’s determ ination reg ardi ng a d efenda nt’s role in an o ffense for cl ear error. United States v. Brubaker , 362 F.3 d 1068, 1070 (8th Cir. 2004).

A trial judge may reduce a defen dant ’s offense lev el by two levels if the court finds tha t th e de fen dan t was a mino r par tic ipa nt i n a co nsp irac y. U.S.S.G. § 3B1.2. A “m inor parti cipant” is some one who is “ less culpa ble than m

ost other pa

rticipant s, but whose rol e could not bedescribed as minima l.” U.S.S .G. § 3B 1.2 cm

t. 5. The burden is on the d efendant t o prove sh e is eligi ble for the reduction

. Brubaker , 362 F.3d at 1071 . The f

act that a defendant

is less cul

pable than other par

ticipants in a cri me does not me an the def endant is e ntitled to a

minor role reduct ion. United States v. Johnson , 358 F.3d 10 16, 1018 (8th Cir. 20 04).

Ferneau was not a minor parti cipant. T he record indicates that: Ferneau was actively involved in the conspiracy to distribute methamphetam ine; her home w as a distribution

center f or the drug s; she provided resources – such as cellular telephones

– to assist in the conspiracy; she weighed, cut, and packaged drugs; and she collected money on behal f of

the metham

phetamine supplier. This evidence suggests that Ferne au’s actions could reasonably be found to constitute more than m inor4 In Ferneau ’s case , she obj ected to w hat quantity

was u se d in calculating her offenselevel. S he did not obj ect to the constitution ality of the appl ication of the Gui del ine s as manda tor y. -17- participa tionin the drug c onspiracy . Acco rdingly , the distr ict court’ s determ

ination that Ferneau

was not en

titled to a minor

participa nt reducti on does not

constitute clear
error.
F. Booker

In B lakely

v. Wa shington , the Supreme Court held that the im position of a s entence enhancement above the State of W ashington’s Sentencing Reform Act ’ s rang e, ba sed solely

on the fac tual findin gs of the se ntencing j udge, viola ted the defen dant ’s Sixth Amendm en t rights. Bl akely , 124 S. C t. at 2537. It constit uted a Sixth Amendment

vio lation b ecause th e findings w ere neith er adm itted by the defendant nor fou nd b y a jur y b eyond a reaso nable dou bt. Id. Following Blakely , and while this appeal was pending, the C ourt held in United States v. Booker , 125 S.Ct. 738 (2005), that “the Sixth Am

endment as constr

ued in Blakely

does apply

to the [Federal] Sentencing Guidelines.” Id. at 746. Under the Booker regim e, “ [a]ny fact (other tha

n a prior c onviction) which is necessary to support a sentence exceeding

the maximum authorized b y the facts estab lished b y . . . a jur y verd ict m ust be admit ted by t he defendant

or proved t o ajury bey ond a reasonable doubt.” Id. at 756.

In this case, Barth and Vargas concede th at plain er ror is the appropria

te standardof review. Ferneau argues, however, that she properly preserved the issue. None of the def

enda nts argued below tha t the Guide lines wer

e unconstitu

tional. 4 Further, none of the m obj ected bas ed on Blakely or Apprendi v

. New Jersey , 530 U.S. 466 (2000). Accordi

ngly, our revie w is lim

ited to determining whether the sentence constitutes plain

error. See United St ates v. P irani , 406 F.3 d 543, 549 (8 th Cir. 20 05)-18-

(en banc). To establ ish plain er ror, the defenda nts must show that (1) there was an error; (2) the e rror wa s plain; and (3) that t

he error affect ed subst antia l rights. Johnson v. United States , 520 U.S. 461, 466-67 (1997). “If all thr ee conditi ons are met, an appella

te court may

then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect [s] the fair

ness, inte grity, or public reputation of judicial proceedings.” Id. (internal quotations omitted). Further, the defen dants have the burden of

proving plain erro r. United St ates v. O lano , 507 U.S. 725, 734 (1993).

In Pirani , we he ld that a Booker /Blakely error “ affects substantial rights” if there is a reas onable prob ability “tha t, but for the erro r the def

endant would have received a mor e favora ble sente nce. ” Pirani , 406 F.3 d at 552. B arth, F erneau, and Vargas have not met their burden to show tha

t there w as a

“reas ona ble pro bab ili ty” the district court would have im posed m ore favor

able sente nces if the Guidelines had been appl ied in an ad visory manner.

Barth ’s sentenceof

life im prisonm ent plus fiv e yea

rs was not determined based upon an applica

tion of the G

uidelines, but rather

the mandatory m

inimum sentences setforth in the

statutes go verning his c onviction. Thus, B arth cann ot prove tha t it would be possible for him

to recei ve a m ore favor

able sentence. Ba

rth’s a rgument that Blakely

requires the fact s of his past conviction to be submitted to the jury if they are used to enhance h is sentence also fail s. We

have held t

hat prior c onvictions do not have to be f

ound by the jury. United St ates v. S cott , 413 F.3d 839, 840 (8th Cir. 2005); United St ates v. P atterson , 412 F.3 d 1011, 1015 ( 8th Cir. 2 005)

. Vargas was sentenced at the bottom of the Guideline range. A sentence at the bottom of the Guideline range “is insufficient, without m ore, to demonstrate a reasonabl e probability that the court would have imposed a lesser sentenceabsent the Booker error.” Pirani , 406 F.3d at 553. Further, the record suggests that the district court would no t have im pos ed a lesser sentence. The district court stated that Vargas ’s sentence, while harsh, was “ certainly appro priate and warranted .”-19-

Therefore, Va rg as cannot demonstrate plain error. Finally , Ferneau was sentenced in the middle of the Guideline range. There is nothing in t

he recor d to suggest

that the district c ourt would have im posed a les ser sente nce on Fer neau if the

Guidelines
were not mandatory. See, e .g. , United States v. Clark , 409 F.3d 1039, 1045 (8th Cir. 2005) (concludin g that there was no pl ain error where t he defenda

nt’s 180 m

onth sentence was within the range of 151 to 188 months).

Becausethe recor

d, when taken as a whol e, does not indicatethat the district court woul d have im

posed a more favorabl e sentenc e under an advisory sentencing reg ime in any of their c ases, the defendant s cannot es tablish theprejudi ce prong of the analysis. Accordingly , they fail to m ee t their burden to prove that the district court com

mitte d plain err

or in im posing the se ntence en

hancements.

For the fore going reaso ns, we a ffirm the judgm

ent of thedistrict court in each appeal.

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