The Honorable Ronald E. Longstaff, United States District

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Judge for the Southern District of Iowa.

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No. 95-3822

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Ronald D. Wallingford, *

*

Appellant. *

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 Submitted: April 8, 1996

 Filed: April 30, 1996

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

Circuit Judge.

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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 to

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distribute and distribution of methamphetamine. We affirm.

Wallingford first 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 defendant

will be considered to have waived the right to be present

whenever a defendant, initially present at trial . . . is

voluntarily absent after the trial has commenced (whether or

not the defendant has been informed
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by the court of the obligation to remain during trial)[.]

In this case, Wallingford was present from May 31, 1994, when trial

began, until Friday, June 3, 1994, when both sides rested. However,

Wallingford was not present when trial resumed for closing arguments at

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 heard from Wallingford and that

Wallingford did not have 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 the

jury that Wallingford was unable to attend. Wallingford's counsel moved

for a mistrial, suggesting that Wallingford's absence might be due to

health problems. The court denied the motion for a mistrial and issued a

bench warrant for Wallingford's arrest. Before closing arguments and

instructions, the court informed the jury that "Mr. Wallingford was unable

to be with us today." After the jury convicted Wallingford, counsel filed

a motion for a new trial, alleging, among other things, a Rule 43

violation. In denying the motion, the district court held that

Wallingford, who still had not appeared, had suffered no prejudice from

concluding the trial in his absence, noting he had been present for all of

the trial except for closing arguments, instructions and deliberation. The

court further noted that delaying the trial would have been a hardship on

the jurors and to reconvene a new jury would have been a waste of judicial

resources. Wallingford was eventually arrested on March 2, 1995 and

sentenced on October 31, 1995 to 235 months imprisonment. 

On appeal Wallingford does not contend that he was not voluntarily

absent from trial on June 6. Nor does he disagree that the district

court's finding regarding voluntary absence is reviewed for clear error and

that its decision to proceed with trial in absentia is reviewed for an

abuse of discretion. See United States v. Davis, 61 F.3d 291, 302 (5th

Cir. 1995), cert.
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denied, 116 S. Ct. 961 (1996). Rather, he argues that the court committed

reversible error by failing to conduct a proper inquiry into whether he was

voluntarily absent. The government responds that even if the district

court had erred, any error is harmless since Wallingford concedes that he

was a fugitive on the morning of June 6. 

In deciding whether to proceed with trial in absentia, a district

court must determine and make appropriate findings "(1) whether the

defendant's absence is knowing and voluntary, and (2) if so, whether the

public interest in the need to proceed clearly outweighs that of the

voluntarily absent defendant in attending the trial." Id. In addition,

to aid appellate review of a finding of voluntary absence, a district court

should "at the time make a record inquiry to attempt to ascertain the

explanation for the absence of the accused." United States v. Krout, 56

F.3d 643, 646 n.5 (5th Cir. 1995) (internal quotation omitted), cert.

denied, 116 S. Ct. 782 (1996). However, it is clear that "a violation of

Rule 43 may in some circumstances be harmless error." Rogers v. United

States, 422 U.S. 35, 40 (1975). In this case, we agree with the government

that assuming the district court should have made a more thorough inquiry

to determine whether Wallingford was voluntarily absent, any error was

harmless. As the government points out, Wallingford concedes he was a

fugitive and thus cannot prove he was involuntarily absent when court

convened the morning of June 6. Indeed, "no issue of the voluntariness of

his disappearance [has] ever [been] raised." Taylor v. United States, 414

U.S. 17, 20 (1973) (per curiam). 

In similar circumstances, appellate courts have found harmless error

and no abuse of discretion 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 because

the court failed to
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make findings concerning its balancing of interests. The First Circuit

held that "any error the court made in failing to make explicit findings

. . . was harmless" and that the court did not abuse its discretion in

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 that [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 [defendant] was apprehended over

one year later"). The Supreme Court has stated that "there can be no doubt

whatever that the governmental prerogative to proceed with a trial may not

be defeated by the conduct of the accused that prevents the trial from

going forward." Taylor v. United States, 414 U.S. at 20 (internal

quotation omitted). 

We also reject Wallingford's argument that the district court erred

in failing to grant his motion for a new trial based on an extra-judicial

contact between an alternate juror and a restaurant employee. On Friday,

June 3, while the alternate 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 jury

and to a court security officer, who in turn reported it to the district

court. On Monday, after the jury retired for deliberations, the court

conducted a hearing at which the alternate juror, who did not serve on the

jury, testified that she believed that the comment was a casual remark and

did not "think that [the cashier] meant anything specific," explaining that

the cashier "would [not] have any clue what trial I was on" and would have

said the remark to "anybody standing there with a juror tag on."

Wallingford did not move for a mistrial or request that the court examine

the jury
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panel concerning the comment. However, in a motion for a new trial, he

alleged juror misconduct based on the comment. The court denied the

motion, noting that the comment was unsolicited and that the juror promptly

reported it. Moreover, the court found that Wallingford had not been

prejudiced by the reporting of the comment to the jury because it was

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,

[Wallingford] is entitled to a new trial only if the district court

committed plain error resulting in a manifest injustice." Id. Here, we

find no plain error. Wallingford's reliance on Remmer v. United States,

347 U.S. 227 (1954), is misplaced. In Remmer, the Supreme Court held that

"[in] a criminal case, any private communication, . . . directly or

indirectly, with a juror during trial about the matter pending before the

jury is, 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.'"

United States v. Blumeyer, 62 F.3d 1013, 1016 (8th Cir. 1995) (quoting

United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988)), cert.

denied, 116 S. Ct. 1263 (1996). Here, there is no presumption of prejudice

because, as the district court found, the "off-hand remark" did not refer

to the factual evidence at the trial. See id. at 1016 (jury foreman's

hypothetical question to an outside attorney was not presumptively

prejudicial 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 person

could interpret the [comment] to be anything other than a casual" nonspecific remark. United States v. Day, 830 F.2d 1099, 1104 (10th Cir.

1987) (no
 In Day, 830 F.2d at 1105, the court applied the Remmer

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presumption of prejudice because the contact was between a person

associated with the case and a juror, but found that the government

had overcome the presumption of prejudice and defendants had failed

to demonstrate actual prejudice. 

 Wallingford has submitted a pro se brief but has not moved

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for leave to file the brief. Even if he had moved to file the

brief, we would deny the motion. "Generally it is Eighth Circuit

policy to refuse to consider pro se filings when a party is

represented by counsel." United States v. Blum, 65 F.3d 1436, 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.

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prejudice arising from government's investigating agent and witness's

casual remarks to juror during restroom break). See also United States

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v. Richmann, 860 F.2d 837, 839 (8th Cir. 1988) (alleged comment by juror

to witness was harmless, inter alia, because it was "beneficial to

[defendant] and detrimental to the government") (overruled on other grounds

by United States v. Covos, 872 F.2d 805, 809-10 (8th Cir.), cert. denied,

493 U.S. 840 (1989)), cert. denied, 490 U.S. 1089 (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.