FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

EDWARD KNIGHT, 

Defendant-Appellant.

No. 21-10197 

D.C. No. 

3:19-cr-00038-

MMD-CLB-1 

OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted November 16, 2022

San Francisco, California

Filed January 4, 2023

Before: Sidney R. Thomas and Mark J. Bennett, Circuit 

Judges, and Robert S. Lasnik,* District Judge.

Opinion by Judge Lasnik

* The Honorable Robert S. Lasnik, United States District Judge for the 

Western District of Washington, sitting by designation.
2 UNITED STATES V. KNIGHT

SUMMARY**

Criminal Law

The panel affirmed Edward Knight’s robbery 

convictions in a case in which a juror participated remotely 

in the first two days of trial.

Knight asserted that permitting a juror to participate 

remotely via Zoom violated his Fifth and Sixth Amendment 

rights, that the error was structural and could not be waived, 

and that he is therefore entitled to a new trial without having 

to show prejudice. 

The panel assumed without deciding that criminal 

defendants have a constitutional right to the in-person 

participation of jurors during their trial. Knight asserted that 

the alleged error is akin to depriving him of his right to a jury 

trial, depriving him of his right to a fair and impartial jury, 

depriving him of a representative jury, and/or depriving him 

of his right to confront witnesses. The panel wrote that none 

of these comparisons is apt, as there is no indication in the 

record—and no reason to suppose—that the remote 

participation of a duly empaneled juror interfered with the 

functioning of the jury, somehow made that juror partial or 

unrepresentative, or impacted the procedures used for the 

presentation of witnesses. The panel wrote that allowing 

remote juror participation does not impact the entire 

framework of the trial in ways that cannot be accurately 

measured on review. Rather, it merely creates room for the 

types of problems and errors identified by Knight, such as 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES V. KNIGHT 3 

difficulties in seeing exhibits, hearing testimony, and/or 

viewing witnesses. But none of those errors will necessarily 

arise simply because a juror is participating remotely. The 

panel wrote that there is no case law or record evidence to 

support a presumption that the remote participation of a juror 

will always render a trial unfair and the judgment unreliable; 

the alleged error simply does not fall within the limited class 

of structural errors that cannot be waived and which require 

automatic reversal. 

Noting that non-structural errors can be waived, the 

panel wrote that the procedure the district court used to 

confirm that Knight’s waiver was knowing, voluntary, and 

intelligent was sufficient. Knight conceded that he 

consented to remote juror participation, but argued that the 

district court did not obtain a valid waiver because it did not 

inform him of the constitutional nature and implications of 

waiver. The panel wrote that this argument fails in light of 

Knight’s knowing, intentional, and voluntary abandonment 

of the claimed right. 

The panel addressed other issues in a concurrently filed 

memorandum disposition. 

COUNSEL

Wendi L. Overmyer (argued) and Aarin E. Kevorkian, 

Assistant Federal Public Defenders; Rene L. Valladares, 

Federal Public Defender; Federal Public Defender’s Office, 

Las Vegas, Nevada; for Defendant-Appellant. 

William R. Reed (argued), Peter H. Walkingshaw, and 

Robert L. Ellman, Assistant United States Attorneys; Jason 

M. Frierson, United States Attorney; Elizabeth O. White, 
4 UNITED STATES V. KNIGHT

Appellate Chief; Office of the United States Attorney, Reno, 

Nevada; Daniel D. Hollingsworth, Attorney, Office of the 

United States Attorney, Las Vegas, Nevada; for PlaintiffAppellee.

OPINION

LASNIK, District Judge:

In July 2019, two stores were robbed in Sparks, Nevada. 

After a six-day trial, Knight was convicted of the robberies 

and sentenced to 169 months’ imprisonment followed by 

five years of supervised release. We consider in this opinion 

Knight’s argument that the convictions must be vacated 

because the district court structurally erred by permitting a 

juror to participate remotely in the first two days of trial. The 

other issues Knight raises on appeal are addressed in a 

separate Memorandum Disposition filed concurrently with 

this Opinion. 

I.

Knight’s criminal trial began on March 8, 2021, with 

jury selection. The jury was empaneled that day. The next 

morning, Juror 10 notified the court that his wife was ill. 

Given the possibility that Juror 10 could be infected with the 

COVID-19 virus, the district court conferred with the parties

to determine how best to proceed, proposing three options: 

One is to allow [Juror 10] to participate in the 

trial by Zoom. He could listen to the 

testimony, view the evidence by Zoom, and 

if by the time the jury begins deliberation he 

is—his wife is clear, then he can join the 
UNITED STATES V. KNIGHT 5

deliberation; if not, then I would dismiss him 

at the time if he could not join the 

deliberation. That way, I still have two 

alternates for awhile [sic].

The second option is to dismiss him and have 

one alternate for the trial, really, before 

opening even starts.

The third option is to delay trial until [Juror 

10] can – is, essentially, permitted to return 

to normal activities. 

The government preferred that Juror 10 be excused from 

service, citing potential technological problems with remote 

service. Knight’s counsel recognized that sharing exhibits 

with a remote juror would require a collaborative solution 

and that the juror should be admonished to not access the 

internet, not use his phone, and devote his full attention to 

the proceedings, but preferred the first option over dismissal 

or delay. The district court then addressed Knight directly:

THE COURT: . . . Mr. Knight, if—you can 

insist that all the jurors participate at the trial 

in person. But if you agree to have [Juror 10] 

watch the trial via Zoom—and of course he 

would have to participate with deliberations 

in person, but, for now, he could watch the 

trial via Zoom. If you consent to it, I will take 

that approach. 

Do you agree?
6 UNITED STATES V. KNIGHT

DEFENDANT KNIGHT: Yes, ma’am. I 

agree.

THE COURT: Have you had a chance to talk 

to your attorney about that option before 

consenting?

DEFENDANT KNIGHT: Yes, ma’am.

THE COURT: I want to make sure you 

understand that you have the option of 

electing not to proceed with that option. If 

you object to proceeding with that option, I 

will not proceed with that option.

Do you understand that?

DEFENDANT KNIGHT: Yes, ma’am.

THE COURT: Knowing that, is it still your 

decision to consent to have [Juror 10] 

participate and view the trial via Zoom?

DEFENDANT KNIGHT: Yes, ma’am.

THE COURT: All right.

I find that Mr. Knight understands that he has 

the right to insist that [Juror 10] participate in 

the trial in person, and he’s waived that right 

and consents to have [Juror 10] view the trial 

via Zoom for now. 
UNITED STATES V. KNIGHT 7

At the end of the day, the district court noted for the record 

that she and her clerk could see Juror 10 on their computer 

screens and that the clerk and Juror 10 had established a 

procedure for him to notify the clerk if he were not able to 

hear or see what was going on in the courtroom. 

By that point, the government had identified “five 

serious concerns” with proceeding with a remote juror and

requested that Juror 10 be excused and replaced with one of 

the alternates. The government argued that if its objections 

were overruled, the district court should again question 

Knight and his counsel to confirm their consent to 

proceeding with a remote juror and to obtain a waiver of any 

right to challenge the remote juror procedure on appeal. 

Defense counsel reiterated that Mr. Knight fully consented 

to the juror’s remote participation, but he declined to waive 

his client’s right to attempt to vitiate that consent on appeal 

or to challenge a defect that might arise out of the remote 

participation. The district court recognized that there might 

be challenges raised on appeal, such as an assertion that the 

waiver was not knowing and voluntary or an argument that 

the asserted right to an in-person jury cannot be waived, but 

wanted Knight’s agreement that “he’s not going to challenge 

his own consent to have [Juror 10] participate by video.” 

Defense counsel offered to “make a full record that [Knight] 

absolutely was advised appropriately, and that he fully 

consents, and that his consent . . . is knowing, voluntary, and 

intelligent, a hundred percent.” The district court again 

addressed Knight directly:

THE COURT: . . . Mr. Knight, let me ask you 

again. You’ve heard some exchange now. I 

want to make sure that you know you have a 

right to insist that [Juror 10] participate at this 

trial in person.
8 UNITED STATES V. KNIGHT

Do you understand that?

DEFENDANT KNIGHT: Yeah. I understand 

what’s going on.

THE COURT: And this morning you’ve had 

a chance to talk to your attorney about 

waiving that right and allowing [Juror 10] to 

participate by video, is that right?

DEFENDANT KNIGHT: Yes, ma’am.

THE COURT: Having conferred with your 

attorney, is it your decision to consent to have

[Juror 10] . . . participate and view this trial 

by video?

DEFENDANT KNIGHT: Yes, ma’am.

THE COURT: All right.

I still find that Mr. Knight understands his 

right, and that his consent is knowing and 

voluntary and I will accept his consent.

With the consent of Knight and his counsel, Juror 10 

participated remotely via Zoom for two days. Juror 10 was 

able to return to the courtroom on March 11th.

II.

On appeal, Knight asserts that permitting a juror to 

participate remotely in his criminal trial violated his Fifth 

and Sixth Amendment rights, that the error was structural 

and could not be waived, and that he is therefore entitled to 
UNITED STATES V. KNIGHT 9

a new trial without having to show prejudice. We will 

assume without deciding that criminal defendants have a 

constitutional right to the in-person participation of jurors 

during their trial. Nevertheless, Knight has not shown that a 

violation of that right constitutes reversible error in the 

absence of resulting prejudice. 

Structural errors “infect the entire trial process,” Brecht 

v. Abrahamson, 507 U.S. 619, 630 (1993), and “necessarily 

render a trial fundamentally unfair,” Rose v. Clark, 478 U.S. 

570, 577 (1986)). They are also “rare.” Washington v. 

Recuenco, 548 U.S. 212, 218 (2006). The Supreme Court has 

“repeatedly recognized that the commission of a 

constitutional error at trial alone does not entitle a defendant 

to automatic reversal.” Id. Indeed, “if the defendant had 

counsel and was tried by an impartial adjudicator, there is a 

strong presumption that any other [constitutional] errors that 

may have occurred” are not structural and are subject to the 

harmless-error analysis of Fed. R. Cr. P. 52(a). Neder v. 

United States, 527 U.S. 1, 8 (1999) (quoting Rose, 478 U.S. 

at 579). The limited circumstances in which structural errors 

have been found include a biased trial judge, Tumey v. Ohio, 

273 U.S. 510 (1927), denial of counsel, Gideon v. 

Wainwright, 372 U.S. 335 (1963), denial of selfrepresentation, McKaskle v. Wiggins, 465 U.S. 168 (1984), 

denial of public trial, Waller v. Georgia, 467 U.S. 39 (1984), 

race discrimination in the selection of the grand jury, 

Vasquez v. Hillery, 474 U.S. 254 (1986), directing entry of 

judgment in favor of the prosecution, Rose, 478 U.S. at 578, 

a defective reasonable-doubt instruction, Sullivan v. 

Louisiana, 508 U.S. 275 (1993), and failing to give oral 

instructions to the jury, United States v. Becerra, 939 F.3d 

995 (9th Cir. 2019). Defining features of a structural error 

include that (1) it deprives defendants of the “basic 
10 UNITED STATES V. KNIGHT

protections without which a criminal trial cannot reliably 

serve its function as a vehicle for determination of guilt or 

innocence,” Neder, 527 U.S. at 8-9 (internal quotation marks 

and citation omitted), and (2) it “def[ies] analysis by 

harmless error standards” because (a) the right at issue 

protects some interest other than avoiding erroneous 

convictions, (b) the effects of the error are difficult to 

identify or measure, and/or (c) the error is of a nature that 

“always results in fundamental unfairness,” Weaver v. 

Massachusetts, 137 S. Ct. 1899, 1907–08 (2017) (internal 

quotation marks and citation omitted).

Knight asserts that the error alleged here, namely 

allowing a juror to participate in a criminal trial via Zoom,

is akin to depriving him of his right to a jury trial, depriving 

him of his right to a fair and impartial jury, depriving him of 

a representative jury, and/or depriving him of his right to 

confront witnesses. None of these comparisons is apt. There 

is no indication in the record—and no reason to suppose—

that the remote participation of a duly empaneled juror 

interfered with the functioning of the jury, somehow made 

that juror partial or unrepresentative, or impacted the 

procedures used for the presentation of witnesses. Unlike a 

deprivation of counsel, a biased adjudicator, or the failure to 

ensure that the jurors are instructed on the law, allowing 

remote juror participation does not impact the entire 

framework of the trial in ways that cannot be accurately 

measured on review. Rather, it merely creates room for the 

types of problems and errors identified by Knight, such as 

difficulties in seeing exhibits, hearing testimony, and/or 

viewing witnesses. But none of those errors will necessarily 

arise simply because a juror is participating remotely. Knight 

asks us to presume that the remote participation of a juror 

will always render a trial unfair and the judgment unreliable, 
UNITED STATES V. KNIGHT 11

but there is no case law or record evidence to support such a 

presumption.1 The alleged error simply does not fall within 

the limited class of structural errors that cannot be waived 

and which require automatic reversal. 

Non-structural errors can be waived. “‘No procedural 

principle is more familiar to [the Supreme Court] than that a 

constitutional right,’ or a right of any other sort, ‘may be 

forfeited in criminal as well as civil cases by the failure to 

make timely assertion of the right before a tribunal having 

jurisdiction to determine it.’” United States v. Olano, 507 

U.S. 725, 731 (1993) (quoting Yakus v. United States, 321 

U.S. 414, 444 (1944)). The government argues that Knight 

knowingly, intentionally, and voluntarily waived any right 

he may have had to the in-person participation of Juror 10.

We review the adequacy of a criminal defendant’s waiver of 

constitutional rights de novo. United States v. Laney, 881 

F.3d 1100, 1106 (9th Cir. 2018). 

Waiver is the “intentional relinquishment or 

abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 

458, 464 (1938). Where a waiver would deprive the 

defendant of a constitutional right, courts generally require 

that it be a voluntary, knowing, and intelligent choice among 

alternative courses of action, made without coercion and 

with sufficient awareness of the relevant circumstances and 

likely consequences that would arise from the waiver. See, 

e.g., Brady v. United States, 397 U.S. 742, 748–49 (1970); 

1 In fact, jurors, attorneys, and trial judges who have participated in 

remote trials largely commend the process, noting advantages in 

observing witnesses and assessing body language and demeanor. Jud. 

Council of the Ninth Cir., 2020 Annual Report, U.S. Cts. for the Ninth 

Cir. 27, https://cdn.ca9.uscourts.gov/ datastore/judicialcouncil/publications/AnnualReport2020.pdf. 
12 UNITED STATES V. KNIGHT

Parke v. Raley, 506 U.S. 20, 29 (1992). “Whether a 

particular right is waivable; whether the defendant must 

participate personally in the waiver; whether certain 

procedures are required for waiver; and whether the 

defendant’s choice must be particularly informed or 

voluntary, all depend on the right at stake.” Olano, 507 U.S. 

at 733. 

The procedure that the district court used in this case to 

confirm that the waiver was knowing, voluntary, and 

intelligent was sufficient. Knight was specifically informed 

on several occasions that he had the right to insist that all 

jurors be present in the courtroom and, when questioned by 

the district court, he indicated that he understood that he had 

that right. Knight was present when the various options for 

dealing with Juror 10’s situation were discussed, including 

the juror’s dismissal and replacement with an alternate. He 

was present as counsel identified all the things that could go 

wrong with remote participation. And he affirmatively 

indicated that he understood what was going on. Having had 

the opportunity to confer with counsel, Knight chose to 

waive the right to have all jurors participate in person and 

agreed to Juror 10’s remote participation. 

The district court found that the waiver was knowing and 

voluntary. Knight concedes that he consented to remote juror 

participation, but argues that the district court did not obtain 

a valid waiver because it did not inform him of the 

constitutional nature and implications of waiver. The 

argument is unavailing. It fails in light of Knight’s knowing, 

intentional, and voluntary abandonment of the claimed right. 

The district court repeatedly advised Knight that he could 

insist on in-person juror participation at any time, ensured 

that Knight spoke with his counsel about the waiver, and 

fully considered concerns raised by both parties. There can 
UNITED STATES V. KNIGHT 13

be no error if the rule on which the defendant relies has been 

effectively waived. Olano, 507 U.S. at 732–33 (“The first 

limitation on appellate authority under Rule 52(b) is that 

there indeed be an ‘error.’ Deviation from a legal rule is 

‘error’ unless the rule has been waived. For example, a 

defendant who knowingly and voluntarily pleads guilty in 

conformity with the requirements of Rule 11 cannot have his 

conviction vacated by court of appeals on the grounds that 

he ought to have had a trial. Because the right to trial is 

waivable, and because the defendant who enters a guilty plea 

waives that right, his conviction without a trial is not 

‘error.’”). The district court did not err when proceeding 

with a remote juror given Knight’s knowing, voluntary, and 

intelligent waiver of any right he may have had to the juror’s 

in-person participation.

AFFIRMED.