### The Honorable Ronald E. Longstaff, United States Distric t 1 

### Judge for the Southern District of Iowa. ___________ No. 95-3822

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Ronald D. Wallingford, * * Appellant. *

___________ Submitted: April 8, 1996 Filed: April 30, 1996

___________ Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN , Circuit Judge.

___________ HENLEY, Senior Circuit Judge.

Ronald D. Wallingford appeals from a final judgment of the district court entered upon a jury verdict finding him guilty of conspiracy t o

1 distribute and distribution of methamphetamine. We affirm.
Wallingfordfirst argues that the district court violated Fed. R

. Crim. P. 43(b)(1), which provides:

The further progress of the trial to and including the return of the verdict . . . will not be prevented and the defendan t will be considered to have waived the right to be presen t whenever a defendant, initially present at trial . . . i s volunt arilyabsent after the trial has commenced (whether o r not the defendant has been informed

### -2- by the court of the obligation to remain during trial)[.]

In this c ase, Wallingford was present from May 31, 1994, when trial bega n, until Friday, June 3, 1994, when both sides rested. However , Wal lingfordwas not present when trial resumed for closing arguments a t 8:30 a.m. on Monday, June 6. At 9:00 a.m., in response to the court' s inquiry, counsel confirmed that he had not heardfrom Wallingford and that Wallingford did not h ave a telephone. The court stated that after having discussed the matter informally with both counsels, it would proceed with closing arguments, instructions and jury deliberations but would inform th e jurythat Wallingford was unable to attend. Wallingford's counsel moved for a m istrial, suggesting that Wallingford's absence might be due t o health problems. The court denied the motion for a mistrial and issued a bench warrant for Wallingford's arrest. Before closing arguments an d instructions, the court informed the jury that " Mr. Wallingford was unable to be with us today." After the jury convicted Wallingford, counsel filed
a m otion for a new trial, alleging, among other things, a Rule 4 3 violation

. In denying the motion, the district court held tha t Wal lingford, who still had not appeared, had suffered no prejudice fro m concluding the trial in his absence, noting he h ad been present for all of the trial except for closing arguments, instructions and deliberation. Th e court further noted t hat delaying the trial would have been a hardship on the jurors and to reconvene a new jury would hav e been a waste of judicial
reso urces. Wallingford was eventually arrested on March 2, 1995 an d sentenced on October 31, 1995 to 235 months imprisonment.

On appea l Wallingford does not contend that he was not voluntaril y absent fro m trial on June 6. Nor does he disagree that the distric t court's finding regarding voluntary absence is reviewed for clear error an d that its decision to proceed with trial in absentia is reviewed for a n abuse o f discretion. See United States v. Davis , 61 F.3d 291, 302 (5t h Cir. 1995), cert.

### -3-

denied , 116 S. Ct. 961 (1996). Rather, he argue s that the court committed reversible error by failing to conduct a proper inquiry into whether he wa s voluntarilyabsent. The government responds that even if the distric t court had erred, any error is harmless since Wallingford concedes that he was a fugitive on the morning of June 6.

In de ciding whether to proceed with trial in absentia, a distric t court must determine and make appropriate findings "(1) whether th e defendant's absence is knowing and voluntary, and (2) if so, whether the publ ic interest in the need to proceed clearly outweighs that of th e voluntarilyabsent defendant in attending the trial." Id. In addition, to aid appellate review of a finding of voluntary absence, a district cour t sho uld "at the time make a record inquiry to attempt to ascertain th e explanationfor the absence of the accused." United States v. Krout , 56 F.3d 64 3, 646 n.5 (5th Cir. 1995) (internal quotation omitted), cert
. denied , 116 S. Ct. 78 2 (1996). However, it is clear that "a violation of Rule 43 m ay in some circumstances be harmless error." Rogers v. Unite d States , 422 U.S. 35, 40 (1975). In this case, we agree with the governmen t that assuming the dis trict court should have made a more thorough inquiry to det ermine whether Wallingford was voluntarily absent, any error wa s harml ess. As the government points out, Wallingford concedes he was a fugitiv e and thus cannot prove he was involuntarily absent when cour t convened the morning of June 6. Indeed, "no iss ue of the voluntariness of his disappearance [has] ever [been] raised." Ta ylor v. United States , 414 U.S. 17, 20 (1973) (per curiam).
In similar circumstances, appellate courts have found harmless error and no abuse of discr etion in a district court's decision to proceed with trial in absentia. For example, in United States v. Guyon , 27 F.3d 723, 727 (1st Cir. 1994), the defendant did not dispute the district court' s finding that he was voluntarily absent, but argued reversible error becaus e the court failed to

### -4-

mak e findings concerning its balancing of interests. The First Circui t heldthat "any error the court made in failing to make explicit findings

. . . was harmless" and that the court did not abuse its discretion i n proceeding with trial in absentia, given that the defendant had "fled at the eleventh hour, in an apparent attempt to manipulate trial process in the exact manner that [Rule] 43(b) is designed to prevent." Id. at 728. See also United States v. Krout , 56 F.3d at 646 (even if record did "not show unequivocally th at [defendant] voluntarily absented himself from the proceedings" no abuse of discretion in proceeding with trial in absentia, "especially in the light of the fact that [defen dant] was apprehended over
one year later"). The Supreme Court has stated that "there can be no doub t whatever that the governmental prerogative to pr oceed with a trial may not be defeated by the conduct of the accused that prevents the trial fro m goi ng forward." Taylor v. United States , 414 U.S. at 20 (interna l quotation omitted).

We also r eject Wallingford's argument that the district court erred in failing to grant h is motion for a new trial based on an extra-judicial contact between an al ternate juror and a restaurant employee. On Friday, June 3, while the alt ernate juror, who was wearing a juror identification badge, was on a lunch break at a restaurant near the courthouse, a restaurant cashier said to her, "I hope you don't find 'em guilty." The alternate juror immediately reported the comment to the members of the jur y and to a court security officer, who in turn reported it to the district court
. On Monday, after the jury retired for deliberations, the cour t conducted a hearing at which the alternate juror , who did not serve on the jury, testified that she believed that the comme nt was a casual remark and did not "think that [the cashier] meant anything specific," explaining tha t the cashier "would [not] have any clue what tria l I was on" and would have
sa id the remark to "anybody standing there with a juror tag on. " Wallingford did not m ove for a mistrial or request that the court examine the jury

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panel c oncerning the comment. However, in a motion for a new trial, h e alle ged juror misconduct based on the comment. The court denied th e motion, noting that the comment was unsolicited and that the juror promptl y reportedit. Moreover, the court found that Wallingford had not bee n pre judicedby the reporting of the comment to the jury because it wa s nothing more that an "off-hand remark by a restaurant employee."
Initially

we note that "by failing to object to the procedures used by the district court or to request a mistrial," Wallingford has failed to preserve this issue for appeal. United States v. Behler , 14 F.3d 1264 , 1268 (8th Cir.), cert. denied , 115 S. Ct. 419 (1994). "Accordingly , [Wallingf ord] is entitled to a new trial only if the district cour t committed plain error resulting in a manifest injustice." Id. Here, we findno plain error. Wallingford's reliance on Remmer v. United States , 347 U.S. 227 (1954), is misplaced. In Remmer , t he Supreme Court held that "[in] a c riminal case, any private communication, . . . directly o r indirectly, with a ju ror during trial about the matter pending before the juryis, for obvious reasons, deemed presumptively prejudicial." Id. at 229. However, "[t]he presumption of prejudice does not apply unless the extrinsic contact relates to 'factual evidence not developed at trial.'" Unite d States v. Blumeyer , 62 F.3d 1013, 1016 (8th Cir. 1995) (quotin g Unit edStates v. Cheyenne , 855 F.2d 566, 568 (8th Cir. 1988)), cert
. denied , 116 S. Ct. 1263 (1996). Here, there is no presumption of prejudic e because, as the distr ict court found, the "off-hand remark" did not refer to the f actual evidence at the trial. See id. at 1016 (jury foreman' s hypothetical question to an outside attorney was not presumptivel y prejudi cial because it did not relate to substantive matter in case)

. Moreover, Wallingford did not prove actual prejudice; nor do we think he could. Indeed, "[i]n context, we do not believe that any reasonable perso n could interpret the [comment] to be anything other than a casual" non

specific remark. United States v. Day , 830 F.2d 1099, 1104 (10th Cir

. 1987) (no

### In Da y , 830 F.2d at 1105, the court applied the Remme r 2 

### presumption of prejudice because the contact was between a person associated with the case and a juror, but found that the gov ernment had overcome the presumption of prejudice and defendants hadfailed to demonstrate actual prejudice. Walli ngford has submitted a pro se brief but has not move d 3 

### for le ave to file the brief. Even if he had moved to file th e brief, we would deny the motion. "Generally it is Eighth Circuit poli cyto refuse to consider pro se filings when a party i s represented by counsel." United States v. Blum , 65 F.3d 143 6, 1443 n.2 (8th Cir. 1995), cert. denied , 116 S. Ct. 1435 (1996). We find no reason to depart from the policy in this case.

-6- pre judice arising from government's investigating agent and witness' s casual remarks to juror during restroom break). See also United State s 2

v. Richmann , 860 F.2d 837, 839 (8th Cir. 1988) (alleged comment by juror to witne ss was harmless, inter alia, because it was "beneficial t o [defendant] and detrimental to the government") (overruled on other ground s by United States v. C ovos , 872 F.2d 805, 809-10 (8th Cir.), cert. denied , 493 U.S. 840 (1989)), cert. denied , 490 U.S. 108 9 (1989); United States v. Castello , 830 F.2d 99, 101 (7th Cir. 1987) ("harmless contact between a juror and a security officer is not grounds for reversal") (per curiam).

Accordingly, we affirm the judgment of the district court. 3

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.