FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOE ANGEL REYES,

Defendant-Appellant.

No. 12-50386

D.C. No.

2:11-cr-00675-JAK-1

OPINION

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted

March 4, 2014—Pasadena, California

Filed September 4, 2014

Before: Jay S. Bybee, Carlos T. Bea,

and Morgan Christen, Circuit Judges.

Opinion by Judge Bybee
2 UNITED STATES V. REYES

SUMMARY*

Criminal Law

The panel affirmed a conviction and sentence for

attempted bank robbery in a case in which the defendant

contended that the district court violated his right to be

present at trial by excluding him from certain side bar

exchanges during jury selection.

The panel held that under Fed. R. Crim. P. 43, the

defendant has a right to be personally present during voir dire

of prospective jurors, and that the district court violated Rule

43 when it questioned Juror H outside of the defendant’s

earshot. The panel held that the error was harmless because

the evidence of the defendant’s guilt was overwhelming.

The panel held that meetings between counsel and the

court at which the participants discuss whether jurors should

be excused for cause, exercise peremptory challenges, or

decide whether to proceed in the absence of prospective

jurors are all examples of “a conference or hearing on a

question of law” from which the defendant may, under Fed.

R. Crim. P. 43(b)(3), be excluded at the district court’s

discretion. The panel therefore held that the district court did

not violate Rule 43 when it excluded the defendant from

seventeen other side bar exchanges.

The panel held that the defendant’s exclusion from the

side bar conference at which the district court conducted voir

* 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. REYES 3

dire of Juror H did not violate the defendant’s constitutional

right to be present because the defendant’s presence would

have been “but a shadow”; it was not an instance where the

defendant’s absence might frustrate the fairness of the

proceedings. The panel held that the district court’s decision

to exclude the defendant from the seventeen other side bar

exchanges – where the attorneys argued that jurors should be

excused for cause, exercised peremptory challenges, and

discussed whether to proceed in the absence of some

prospective jurors – was likewise consistent with the

Constitution. 

The panel concluded that the district court did not impose

a substantively unreasonable sentence.

COUNSEL

Matthew B. Larsen (argued), Deputy Federal Public

Defender; Sean K. Kennedy, Federal Public Defender, Los

Angeles, California, for Defendant-Appellant.

Michael Dore (argued), Assistant United States Attorney,

Violent and Organized Crime Section; Robert E. Dugdale,

Assistant United States Attorney, Chief, Criminal Division;

Andre Birotte, Jr., United States Attorney, United States

Attorneys’ Office, Los Angeles, California, for PlaintiffAppellee.
4 UNITED STATES V. REYES

OPINION

BYBEE, Circuit Judge:

Joe Angel Reyes appeals his conviction of one count of

attempted bank robbery in violation of 18 U.S.C. § 2113(a). 

Reyes raises two arguments on appeal. First, he contends that

the district court violated his right to be present at trial by

excluding him from certain side bar exchanges during jury

selection. Second, he asserts that his sentence is

substantively unreasonable. We have jurisdiction under

28 U.S.C. § 1291. We affirm.

I.

A. Jury Selection

A federal grand jury returned an indictment charging

Reyes with two counts of bank robbery and two counts of

attempted bank robbery in violation of 18 U.S.C. § 2113(a). 

The district court conducted voir dire on March 6, 2012. 

Reyes was present in the courtroom with his attorneys. After

questioning the first twelve jurors in open court, the district

court conferred with the attorneys representing Reyes and the

government at side bar. The court began by asking Reyes’s

attorney, John Littrell, whether any jurors should be excused

for cause. After the lawyers discussed which jurors should be

excused, Littrell requested that Reyes himself be permitted to

participate at the side bar conferences with the lawyers. The

court denied the request, advising Littrell that “If you wish to

confer with your client while we’re here, you can do so” and

explaining that “I’ve never had a client participate in a side

bar on jury selection because I count on the lawyers that you

know what you’re doing to communicate with your client and
UNITED STATES V. REYES 5

get the data and convey it to me.” The court then reiterated

to Littrell that “If in the course of what we’re discussing

something comes up that you want to talk to him about at

anytime, please let me know.” Littrell declined to confer with

Reyes at that point. At the next side bar conference, the court

told defense counsel, “I know your client is not here and–you

have a standing objection on that.”

The district court held a total of eighteen side bar

conferences with the attorneys during the course of jury

selection. Consistent with the court’s decision, Reyes

remained at the table during each exchange rather than

joining the lawyers at the bench. On four occasions, Reyes’s

attorneys asked for a moment to confer with Reyes, and each

time the court granted the request and confirmed that they

were welcome to speak with their client before proceeding.

At seventeen of the eighteen side bar conferences, the

attorneys either discussed whether a juror should be excused

for cause, exercised a peremptory challenge, or conversed

about whether voir dire should proceed even though two of

the prospective jurors had yet to return from lunch. At no

point during these seventeen conferences did the attorneys or

the court speak with a prospective juror or anyone else.

During one of the eighteen side bar exchanges, the court

briefly questioned a prospective juror, who we will refer to as

Juror H, outside of Reyes’s earshot. As part of its standard

line of questioning, the district court asked Juror H in open

court whether any of the matters discussed “raises a question

with you as to your ability to be fair and impartial.” Juror H

answered “Yes, I have a personal issue,” and accepted the

court’s invitation to speak privately. The court then

questioned Juror H at the bench with the lawyers for both
6 UNITED STATES V. REYES

Reyes and the government present. Juror H informed the

court that a woman with whom her son had a child had

robbed nine banks about five years earlier. Juror H said “I

don’t know if I can be fair” because she thought the woman

should have been punished more harshly than she was for

robbing the banks. The court again asked Juror H whether

she could fairly evaluate the case as a juror and she responded

“I’m not sure” and “I can’t say.” Next, the court explained

that everyone has been shaped by their prior experiences, and

Juror H replied “That’s true” and “I don’t want to be unfair.” 

The court instructed Juror H to further consider whether she

could be fair and sent her back to her seat. The attorneys for

both Reyes and the government recommended that Juror H’s

status as a juror be resolved immediately. The court then had

the following exchange with Juror H in open court:

The Court: Ms. [H], we spoke at the side; and

I asked you to reflect on what we talked

about. Have you had enough time to do that,

or do you need more time?

Juror H: I think I’m okay with the time.

The Court: What’s your present thinking?Can

you be fair and impartial in this case?

Juror H: It’s like, what is fair?

The Court: Well, fair means that you listen to

the evidence and evaluate it and you do so in

an impartial way.

Juror H: Yes, I believe so.
UNITED STATES V. REYES 7

After the exchange between the court and Juror H, Reyes’s

attorney exercised a peremptory challenge on a different

prospective juror. Neither party excused Juror H, who served

on the jury that convicted Reyes of attempted bank robbery.

B. Trial

At trial, the government adduced evidence that Reyes had

robbed two banks and attempted to rob two others between

September 24, 2010 and October 7, 2010. A teller at a Wells

Fargo bank branch in Los Angeles testified that, on

September 25, 2010, Reyes approached the counter where he

was working and handed him a note. The note, which the

government introduced into evidence, said “Don’t Be a

Hero—this is a Bank Robbery[.] I have a gernade [sic] and

if you [expletive] up I’ll pull it!! trust & Believe[.] I am a

Psycho Killer.” The teller testified that when he turned to get

his manager’s attention, Reyes left the bank without receiving

any money. The government introduced surveillance

photographs from the bank’s cameras depicting the event, and

the teller confirmed that he had previously identified Reyes

as the man who passed him the note. The government

introduced similar evidence from the other three banks that it

accused Reyes of robbing or attempting to rob—namely, the

testimony of bank employees who identified Reyes,

surveillance footage from the banks, and demand notes

allegedly used by Reyes.

Detective Veronica Conrado testified about interviewing

Reyes on the night that he was arrested. The government

introduced an audio recording of the interview, during which

Reyes described committing the four completed and

attempted bank robberies. Conrado testified that Reyes

confirmed he was the man pictured in two bank surveillance
8 UNITED STATES V. REYES

photos and that he wrote two of the demand notes produced

by the detectives.

After five hours of deliberations, the forewoman informed

the district court that the jury was deadlocked on three of the

four counts. At the urging of defense counsel, the court

declined to ask the jury to continue deliberating. The jury

returned a verdict finding Reyes guilty on count two of the

indictment, which is attempted robbery of the Wells Fargo

bank branch in Los Angeles on September 25, 2010. The

court declared a mistrial on the other count of attempted bank

robbery and the two counts of completed bank robbery. The

court later entered judgment on the jury’s guilty verdict on

count two of the indictment.

C. Sentencing

Before he was indicted in this case, Reyes pled guilty in

California state court to the second-degree robbery of a shoe

store that occurred about two weeks after the attempted bank

robbery at issue here. He was sentenced to a term of fifteen

years in state prison, which he was serving at the time he was

sentenced in this case.

The presentence report calculated a total offense level of

twenty-four and a criminal history category of VI, resulting

in a sentencing range of 100–125 months. The probation

officer did not identify any factors warranting a departure or

variance from the Guidelines range. At the sentencing

hearing,Reyes’s counsel requested a sentence of 100 months’

imprisonment, with twelve months to run consecutive to the

fifteen-year state sentence. The government requested 125

months’ imprisonment, with fifty months to run consecutive

to the state sentence. The district court imposed a sentence of
UNITED STATES V. REYES 9

125 months, with thirty-six months to run consecutive to the

state sentence, along with three years of supervised release.

In reviewing the factors specified in 18 U.S.C. § 3553(a),

the court emphasized that Reyes had exhibited a “long pattern

of criminal conduct” and had repeatedlycommitted additional

crimes soon after being released from state custody. It also

stated that the attempted bank robbery involved a threat of

violence because the note that Reyes passed to the Wells

Fargo teller said that he had a grenade.

II.

We first address Reyes’s contention that the district court

impermissibly excluded him from eighteen side bar

exchanges during jury selection. Although we review the

district court’s conduct of voir dire for abuse of discretion,

United States v. Sherwood, 98 F.3d 402, 407 (9th Cir. 1996),

questions of law that arise during the course of voir dire are

reviewed de novo, United States v. Beard, 161 F.3d 1190,

1193 (9th Cir. 1998).

A. Statutory and Constitutional Framework

A criminal defendant has both a statutory and a

constitutional right to be “present” during trial proceedings.

The source of the statutory right is Federal Rule of Criminal

Procedure 43, which provides in relevant part that “the

defendant must be present at . . . every trial stage, including

jury impanelment and the return of the verdict,” Fed. R. Crim.

P. 43(a)(2), but the “defendant need not be present . . . [if]

[t]he proceeding involves only a conference or hearing on a

question of law,” Fed. R. Crim. P. 43(b)(3).
10 UNITED STATES V. REYES

On the constitutional level, “[a] person charged with a

felony has a fundamental right to be present at every stage of

the trial . . . [including] the voir dire and empanelling of the

jury.” Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994)

(en banc) (citing Illinois v. Allen, 397 U.S. 337, 338 (1970)

and Diaz v. United States, 223 U.S. 442, 455 (1912)). “The

right of presence derives from the Confrontation Clause of

the Sixth Amendment and the Due Process Clauses of the

Fifth and Fourteenth Amendments.” Id. (citing United States

v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam)).

Importantly, the scope of Rule 43 is broader than the

scope of the constitutional right to be present. See United

States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir.

2002) (stating that, in addition to the constitutional right to be

present, “[t]he defendant also has a broader statutory right to

be present ‘at every stage of the trial including the impaneling

of the jury and the return of the verdict’” (quoting Fed. R.

Crim. P. 43)); United States v. Sherman, 821 F.2d 1337, 1339

(9th Cir. 1987) (“The right to be present at every stage of the

trial set forth in Rule 43 is more far-reaching than the right of

a defendant to attend his trial as guaranteed by the

Constitution.”). The statute sweeps more broadly than the

corresponding constitutional right because Rule 43

incorporated the more expansive common law understanding

of the right as well as the constitutional standard. See United

States v. Rolle, 204 F.3d 133, 137 (4th Cir. 2000) (citing Fed.

R. Crim. P. 43, 1944 Advisory Committee Note, Para. 1).
UNITED STATES V. REYES 11

B. Federal Rule of Criminal Procedure 43

1. Violation of Federal Rule of Criminal Procedure 43

As an initial matter, we must distinguish between two

different kinds of side bar exchanges that occurred during

jury selection in this case. On one occasion, the court

questioned a prospective juror—Juror H—at the bench. On

seventeen other occasions, the lawyers for both parties met

the court at side bar to request that jurors be excused for

cause, exercise peremptory challenges, or discuss whether to

continue with the proceedings even though two prospective

jurors had not yet returned from lunch. During those

seventeen exchanges, neither the court nor the attorneys

spoke with a prospective juror or anyone else. We conclude

that the district court violated Rule 43 when it questioned

Juror H outside of Reyes’s earshot, but the district court did

not violate Rule 43 by refusing Reyes’s request to be present

during the other seventeen side bar exchanges.

a. Voir dire of Juror H

Rule 43(a)(2) provides in part that “the defendant must be

present at . . . every trial stage.” In the context of analyzing

the constitutional right to be present, we have explained that

voir dire is a trial stage. See Campbell, 18 F.3d at 671. 

Because Rule 43 encompasses the constitutional right to be

present, voir dire is also a “trial stage” as the phrase is used

in the rule. See Rosales-Rodriguez, 289 F.3d at 1109. The

term “voir dire” means, among other things, “[a] preliminary

examination of a prospective juror by a judge or lawyer to

decide whether the prospect is qualified and suitable to serve

on a jury.” Black’s Law Dictionary 1710 (9th ed. 2009). The

district court thus conducted “voir dire” of Juror H at side bar
12 UNITED STATES V. REYES

when it asked about her ability to be fair and impartial in light

of her personal experiences with bank robbery, because the

conversation concerned whether she was “qualified and

suitable to serve on a jury.”

We have previously observed that “[t]here is authority

that Rule 43 requires the defendant’s presence at the voir dire

examination of prospective jurors.” United States v.

Bordallo, 857 F.2d 519, 522 (9th Cir. 1988), amended on

reh’g by 872 F.2d 334 (9th Cir. 1989). Indeed, other courts

have held that the defendant has a statutory right to be present

when the district court conducts voir dire at the bench. See,

e.g., United States v. Cuchet, 197 F.3d 1318, 1319–20 (11th

Cir. 1999) (discussingRule 43 in concluding that “the district

court likely did err in excluding Defendant, over his express

objection, from a part of the confidential voir dire of

prospective jurors conducted at the bench”); United States v.

Ford, 88 F.3d 1350, 1369 (4th Cir. 1996) (quoting Rule 43(a)

before observing that “the defendants had the right to be

present during the bench conferences with the jurors”);

United States v. Washington, 705 F.2d 489, 497 (D.C. Cir.

1983) (per curiam) (“[T]here is little doubt that under rule 43,

the appellant had a right to hear that part of the voir dire

conducted at the bench after counsel made his request.”).

We agree with these courts that, under Rule 43, the

defendant has a right to be personally present during voir dire

of prospective jurors. The district court erred by questioning

Juror H to determine whether she was “qualified and suitable

to serve on a jury” when Reyes had a standing objection to
UNITED STATES V. REYES 13

his exclusion from the side bar conferences.1 The court could

have complied with Rule 43 either by permitting Reyes to

join his attorney at the bench while the court conversed with

Juror H or by questioning her in open court.

b. The seventeen other side bar exchanges

The district court did not violate Rule 43, however, when

it excluded Reyes from the seventeen other side bar

exchanges. According to Rule 43(b)(3), the “defendant need

not be present . . . [if] [t]he proceeding involves only a

conference or hearing on a question of law.” We have not yet

squarely decided whether Rule 43 requires the defendant’s

presence where, as here, the attorneys meet with the court to

discuss which jurors to dismiss for cause, exercise

peremptory challenges, or consider whether to proceed with

voir dire in the absence of some prospective jurors.2 We now

1 The exchange with Juror H was brief, but the language of the statute

does not allow for exceptions on the basis that the trial stage from which

the defendant was excluded was brief, redundant, or unimportant.

2

In United States v. Fontenot, 14 F.3d 1364 (9th Cir. 1994), we

expressly refrained from deciding whether Rule 43 mandated the

defendant’s presence at a peremptory challenge conference. Id. at 1370

& n.2. We held that it was not plain error for the district court to receive

the parties’ peremptory challenges outside ofthe presence ofthe defendant

when the defendant “had the opportunity to discuss his misgivings with

counsel during and immediately following voir dire, prior to exercising his

peremptory challenges.” Id. at 1370. But we did not decide whether the

peremptory challenge conference is a “trial stage” under Rule 43(a)(2) or

whether it is a “hearing on a question of law” under Rule 43(b)(3).

Our decision in Bordallo also did not reach this issue. There, we

observed that Rule 43 distinguishes “between the ministerial stage of

drawing the prospective juror pool and the formal pretrial narrowing ofthe

pool through voir dire for a particular trial.” Bordallo, 857 F.2d at 523. 
14 UNITED STATES V. REYES

hold that meetings between counsel and the court at which the

participants discuss whether jurors should be excused for

cause, exercise peremptory challenges, or decide whether to

proceed in the absence of prospective jurors are all examples

of “a conference or hearing on a question of law” from which

the defendant may be excluded at the district court’s

discretion.

“Although [Rule 43(b)(3)] leaves the term ‘question of

law’ undefined, the term typically refers to ‘[a]n issue to be

decided by the judge, concerning the application or

interpretation of the law.’ An issue can be a ‘question of

law,’ moreover, ‘although it may turn on a factual point,’ so

long as it ‘is reserved for the court and excluded from the

jury.’” United States v. Gonzales-Flores, 701 F.3d 112, 116

(4th Cir. 2012) (second alteration in original) (internal

citation omitted) (quoting Black’s Law Dictionary 1366 (9th

ed. 2009)). Whether a prospective juror should be excused

We noted that “there is authority that the defendant has no right to be

present during the drawing of the jury by the jury commissioners,” while,

by contrast, “[t]here is authority that Rule 43 requires the defendant’s

presence at the voir dire examination of prospective jurors.” Id. at 522. 

We concluded that the district court erred by excluding certain jurors from

the jury pool before either the defendant or his lawyer arrived because the

action was more analogous to “the voir dire examination of prospective

jurors” than “the ministerial stage of drawing the prospective juror pool.” 

Id. at 522–23. But we had no reason to consider whether the proceedings

at issue were “a conference or hearing on a question of law” such that the

defendant’s presence was not required. The district court in Bordallo did

not hold a “conference” or “hearing” on which jurors to excuse, given that

it made the decision on its own without conferring with counsel and

without even waiting for the attorneys to arrive in court. Id. at 522. Here,

the district court always conferred with the attorneys for both parties

before excusing jurors, and then dismissed the jurors in open court in

Reyes’s presence.
UNITED STATES V. REYES 15

initially involves a fact-intensive inquiry into her answers and

demeanor during voir dire, among other things. That is why

we held, supra, that the district court erred by conducting voir

dire of Juror H outside of Reyes’s presence, thereby

potentially depriving him of information that he needed to

assist his attorneys in making an informed decision about

whether she should be seated on the jury.

But the side bar exchanges where the attorneys argued

that certain prospective jurors should be excused for cause

consisted solely of legal arguments based on facts that had

already been elicited in Reyes’s presence. The district court’s

determination whether to excuse a particular prospective juror

for cause is a question of law. See Perez v. Marshall,

119 F.3d 1422, 1426 (9th Cir. 1997) (“Whether a trial court

violates a defendant’s Sixth Amendment right to a jury trial

by excusing a juror for good cause and replacing that juror

with an alternate is a question of law . . . .”). A side bar

exchange where the court decides whether to excuse a juror

for cause is, therefore, “a conference or hearing on a question

of law” at which the defendant need not be present under

Rule 43(b)(3). Likewise, a side bar exchange where the

attorneys exercise peremptory challenges involves only the

application of legal rules, such as whether the parties have

used no more than the allotted number of peremptory

challenges. Other than the single instance where the court

questioned Juror H, all of the side bar conferences in this case

were properly conducted outside of Reyes’s presence because

they involved “[a]n issue to be decided by the judge,

concerning the application or interpretation of the law.” 

Gonzales-Flores, 701 F.3d at 116 (quotation marks and

citation omitted).
16 UNITED STATES V. REYES

We offered guidance on determining whether a

conference or hearing involves a “question of law” in United

States v. Veatch, 674 F.2d 1217 (9th Cir. 1981). There, the

defendant was excluded from a pretrial conference where the

court and attorneys discussed the defendant’s motion for an

evidentiary hearing regarding his competency to stand trial

and motions related to a proposed insanity defense. Id. at

1225. We held that Rule 43 did not mandate the defendant’s

presence because his “presence would have contributed

nothing substantial to his opportunity to defend since the

matters discussed predominantly involved questions of law.” 

Id. at 1226. Other courts have similarly reasoned that the

defendant’s exclusion from a conference or hearing is

permitted by Rule 43(b)(3) when the defendant’s presence

would probably be meaningless as a practical matter. See,

e.g., Gonzales-Flores, 701 F.3d at 118 (“[T]he whole point of

the right to be present (in both its constitutional and statutory

dimensions) is to permit the defendant to contribute in some

meaningful way to the fair and accurate resolution of the

proceedings against him.”); United States v. Jones, 674 F.3d

88, 94 (1st Cir. 2012) (“Rule 43 carves out an explicit

exception for ‘a conference or hearing on a question of law,’

the rationale surely being that a defendant’s presence on a

legal issue (whether at sidebar or in chambers) is not going to

aid the defense counsel in making such arguments.” (internal

citation omitted)); United States v. Moe, 536 F.3d 825, 830

(8th Cir. 2008) (explaining that a number of judicial

“decisions reflect an understanding that the Rule 43(b)(3)

exception hinges on whether the defendant’s absence would

impact his ‘opportunity to defend against the charge’”

(quoting Gagnon, 470 U.S. at 526)).

Here, Reyes’s presence at the seventeen side bar

exchanges where neither the attorneys nor the court spoke
UNITED STATES V. REYES 17

with a prospective juror “would have contributed nothing

substantial to his opportunity to defend.” Veatch, 674 F.2d at

1226. The court placed no limits on Reyes’s ability to convey

to his attorneys which jurors he thought should be excused for

cause or how he wanted to use his peremptory challenges. 

And it permitted Reyes’s lawyers to confer with their client

before making decisions, thereby giving his counsel an

opportunity to explain the government’s position to Reyes

after the side bar exchanges. The court also identified in open

court each juror that had been excused so that Reyes would

have known if his attorneys had mistakenly challenged the

wrong juror.

Several other courts have held that Rule 43 does not

require the defendant’s presence under similar circumstances. 

See, e.g., United States v. Curtis, 635 F.3d 704, 716 (5th Cir.

2011) (holding that the defendant’s “right to be present at

every stage of his trial” was not violated where he “was

present when the peremptory challenges were given formal

effect via the impaneling of the jury” and had an “opportunity

to consult with his attorney before his attorney submitted the

peremptorychallenges”); United States v. Gayles, 1 F.3d 735,

738 (8th Cir. 1993) (“[The defendant] was present in the

courtroom while the potential jurors were questioned. 

Although [the defendant] was absent later when his attorney

made his strikes . . . [the defendant] was present in the

courtroom when the clerk gave the strikes effect by reading

off the list of jurors who had not been stricken. . . . [The

defendant] was sufficiently present at the jury’s impaneling

to satisfy Rule 43 and the Constitution.”); United States v.

Bascaro, 742 F.2d 1335, 1349–50 (11th Cir. 1984) (holding

that “the defendants were sufficiently present at the

impaneling of the jury to satisfy the sixth amendment and

Rule 43” where the defendants were in the courtroom when
18 UNITED STATES V. REYES

voir dire occurred and they had an opportunity to confer with

their attorneys), abrogated in part on other grounds by

United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en

banc).

The cases from other circuits holding that Rule 43 was

violated when the defendant was excluded from a portion of

jury selection are distinguishable. For example, in United

States v. Thomas, 724 F.3d 632 (5th Cir. 2013), the court held

that “[the defendant’s] absence from the exercise of

peremptory challenges was in deviation from her rights both

under the Fifth Amendment Due Process Clause and under

the express provisions of Fed. R. Crim. P. 43.” Id. at 643. 

But the court’s holding was premised on the fact that “[the

defendant] was not present when trial counsel exercised

peremptory challenges or when the court read the list of

jurors who were not struck into the record.” Id. (emphasis

added). Here, Reyes was present when each juror was

excused in open court and when the jury was sworn in. In

United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999), the

court stated that “[t]he absence of the defendants from the

peremptory challenge conference may sometimes constitute

reversible error.” Id. at 438. But the court did not elaborate

on when the defendant’s absence would be inconsistent with

Rule 43. Nor did the court decide the case before it on the

grounds that the defendant’s absence violated the rule.

2. Harmless error analysis

Having determined that the district court violated Rule

43(a)(2) when it conducted voir dire of Juror H outside of

Reyes’s presence, we must assess whether the error was

harmless. We conclude that the side bar voir dire of Juror H

was harmless because the evidence of Reyes’s guilt was
UNITED STATES V. REYES 19

overwhelming. See Rosales-Rodriguez, 289 F.3d at 1111

(observing that “the evidence against the defendant was

overwhelming” in holding that a constitutional violation was

harmless beyond a reasonable doubt). At trial, the

government introduced Reyes’s recorded confession, the

testimony of a bank employee who identified him as the

culprit, and video footage from the bank. Because the

outcome would remain unchanged if Reyes had been present

when the court questioned Juror H at side bar, the violation of

Rule 43 was harmless. Rosales-Rodriguez, 289 F.3d at 1111.

C. Constitutional Right To Be Present

We next consider whether Reyes’s constitutional right to

be present was violated when the district court refused his

request to join his attorneys at the side bar conferences during

jury selection. We conclude that no constitutional violation

occurred.

“[A] defendant charged with a felony has a fundamental

right to be present during voir dire.” Sherwood, 98 F.3d at

407; see also Campbell, 18 F.3d at 671. But the Constitution

is not implicated every time a defendant is excluded from a

trial stage, for “[a]lthough the right of a defendant to be

present at his trial is ‘ancient and well-established,’ it is not

all encompassing or absolute.” Veatch, 674 F.2d at 1225

(internal citation omitted).

In Snyder v. Massachusetts, 291 U.S. 97 (1934), the

Supreme Court, in an opinion by Justice Cardozo, noted that

“in a prosecution for a felony the defendant has the privilege

under the Fourteenth Amendment to be present in his own

person whenever his presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend
20 UNITED STATES V. REYES

against the charge.” Id. at 105–06. With respect to voir dire,

the Court noted that the “defense may be made easier if the

accused is permitted to be present at the examination of jurors

. . . for it will be in his power, if present, to give advice or

suggestion or even to supersede his lawyers altogether and

conduct the trial himself.” Id. at 106. But the Court went on

to observe that “[n]owhere in the decisions of [the Supreme

Court] is there a dictum, and still less a ruling, that the

Fourteenth Amendment assures the privilege of presence

when presence would be useless, or the benefit but a

shadow.” Id. at 106–07 (emphasis added). The Court later

reemphasized that the constitutional right to be present is not

absolute, holding that “the presence of a defendant is a

condition of due process to the extent that a fair and just

hearing would be thwarted by his absence, and to that extent

only.” Id. at 107–08 (emphasis added).3

The Court reaffirmed this holding in Faretta v.

California, 422 U.S. 806 (1975), where it observed that “[i]t

is now accepted . . . that an accused has a right to be present

at all stages of the trial where his absence might frustrate the

fairness of the proceedings.” Id. at 819 n.15 (emphasis

3

In Lewis v. United States, 146 U.S. 370 (1892), the Court stated that

“[a] leading principle that pervades the entire law of criminal procedure

is that, after indictment found, nothing shall be done in the absence of the

prisoner.” Id. at 372. But the Court set aside this principle in Snyder

when it explained that the Court’s previous statements “on the subject of

the presence of a defendant [were] dict[a], and no more.” Snyder,

291 U.S. at 117 n.2. The Snyder Court further observed that the

discussion of the right to be present in Lewis “deals with the rule at

common law and not with constitutional restraints.” Id. In Allen, the

Court again expressly repudiated Lewis in observing that “[t]he broad

dicta in [Hopt v. Utah, 110 U.S. 574 (1884)] and [Lewis] that a trial can

never continue in the defendant’s absence have been expressly rejected.” 

Allen, 397 U.S. at 342.
UNITED STATES V. REYES 21

added). And the Court applied this principle in Gagnon in

holding that “[t]he mere occurrence of an ex parte

conversation between a trial judge and a juror does not

constitute a deprivation of any constitutional right. The

defense has no constitutional right to be present at every

interaction between a judge and a juror.” Gagnon, 470 U.S.

at 526 (internal quotation marks and citation omitted).

1. Voir dire of Juror H

Reyes’s exclusion from the side bar conference where the

court conducted voir dire of Juror H was not an instance

where the defendant’s “absence might frustrate the fairness of

the proceedings.” Faretta, 422 U.S. at 819 n.15. It was

instead an example of an exchange where his presence would

have been “but a shadow.” Snyder, 291 U.S. at 106–07.

A defendant’s presence during voir dire is important

because it allows him to observe the prospective jurors’

answers and demeanor so that he can assist his attorney in

constructing an impartial jury. See Bustamante v. Eyman,

456 F.2d 269, 274 (9th Cir. 1972) (“The right to be present at

trial stems in part from the fact that by his physical presence

the defendant can hear and see the proceedings, can be seen

by the jury, and can participate in the presentation of his

rights.”); see also Rolle, 204 F.3d at 137 (explaining that the

defendant might “have knowledge of facts about himself or

the alleged crime . . . which may become important as the

individual prejudices or inclinations of the jurors are

revealed” and that he “may also be a member of the

community in which he will be tried and might be sensitive

to particular local prejudices his lawyer does not know about”

(quotation marks and citation omitted)). But Reyes’s absence

when the court questioned Juror H at side bar did not
22 UNITED STATES V. REYES

meaningfully affect his ability to assist his attorneys in

evaluating her as a prospective juror. The exchange between

the court and Juror H was brief, and Reyes’s attorney could

have offered his client a full account of the conversation

between the court and Juror H given the brevity of the

exchange and the court’s willingness to permit them to confer

throughout voir dire. See Gagnon, 470 U.S. at 527 (“The

encounter between the judge, the juror, and [the defendant’s]

lawyer was a short interlude in a complex trial; the

conference was not the sort of event which every defendant

had a right personally to attend under the Fifth

Amendment.”). Of course, “the presence of counsel is no

substitute for the presence of the defendant himself.” 

Bustamante, 456 F.2d at 274. But the ease and reliability

with which an attorney can relay the details of a side bar

exchange to the defendant is one factor that affects whether

the defendant’s absence might undermine the fundamental

fairness of the proceeding. See Gagnon, 470 U.S. at 526–27

(“[T]he exclusion of a defendant from a trial proceeding

should be considered in light of the whole record” (citing

Snyder, 291 U.S. at 115)).

The defendant’s right to be present is also an important

means to “safeguard the public’s interest in a fair and orderly

judicial system.” Bustamante, 456 F.2d at 274–75. But

Reyes’s exclusion from a short conversation between the

court and a prospective juror that was witnessed by counsel

and transcribed does not threaten the integrity of the judicial

system. To the contrary, to hold that the Constitution extends

to the defendant the right to be present at every exchange

between the court and a prospective juror might interfere with

the trial court’s ability to maintain a secure and orderly

environment. See Rushen v. Spain, 464 U.S. 114, 119 (1983)

(chastising the lower courts for “ignor[ing] the[ ] day-to-day
UNITED STATES V. REYES 23

realities of courtroom life and undermin[ing] society’s

interest in the administration of criminal justice” by strictly

limiting unrecorded ex parte communications between trial

courts and jurors).

Other courts have held that a defendant’s exclusion from

a portion of voir dire does not cast doubt on the fundamental

fairness of the proceedings. In Washington, the district court

questioned thirteen prospective jurors at side bar about their

prior involvement with the criminal justice system. 

Washington, 705 F.2d at 496. The court refused the

defendant’s request to participate. Id. Two of the prospective

jurors questioned outside of the defendant’s presence were

eventually seated on the jury. Id. at 498. The D.C. Circuit,

in a per curiam opinion joined by then-Judge Ruth Bader

Ginsburg, held, as we do here, that the exclusion of the

defendant from part of voir dire violated Rule 43 but not the

Constitution. Id. at 497 n.5 (“The constitutionally mandated

minimum protection a defendant is entitled to under rule

43(a) is fundamental fairness. This minimum of fairness was

certainly met in this case . . . . We stress this only to amplify

that our holding is based on rule 43(a), not directly on the

Sixth Amendment confrontation clause or the due process

guarantee of the Constitution.” (internal citations omitted)). 

Similarly, in Bland v. Sirmons, 459 F.3d 999 (10th Cir. 2006),

“the trial court conducted a limited voir dire of thirty-two

individual jurors in chambers” without the defendant present

before conducting the rest of voir dire in open court. Id. at

1020. The court held that the defendant’s absence from part

of voir dire was “not enough to establish a constitutional

violation” because “[c]onsidering [the defendant’s] absence

from individual voir dire in light of the entire jury selection

process, [the defendant] had ample opportunity to observe

jurors during voir dire and exercise peremptory challenges
24 UNITED STATES V. REYES

accordingly.” Id. at 1021; see also Kilmartin v. Dormire,

161 F.3d 1125, 1127 (8th Cir. 1998) (holding that the

defendant’s constitutional right to be present was not violated

when the trial court spoke with six prospective jurors outside

of the defendant’s earshot about matters that the prospective

jurors wished to discuss privately). In all three of these

cases—Washington, Bland, and Kilmartin—the trial court

conducted voir dire of multiple jurors outside of the

defendant’s presence without transgressing the constitutional

right to be present. These authorities bolster our conclusion

that the district court’s decision to briefly question a single

juror outside of Reyes’s presence did not create a scenario

where the defendant’s “absence might frustrate the fairness of

the proceedings.” Faretta, 422 U.S. at 819 n.15.

We note that the Second Circuit reached a contrary

conclusion in Cohen v. Senkowski, 290 F.3d 485 (2d Cir.

2002). There, the trial court held “pre-screening”

proceedings where it questioned all of the prospective jurors

outside of the defendant’s presence about their exposure to

media reports about the case. Id. at 487. Two of the jurors

who stated that they were familiar with the case were

eventually seated on the jury. Id. The trial court conducted

the remainder of voir dire in open court, though on three

occasions the court again questioned prospective jurors

outside of the defendant’s presence about possible bias based

on pretrial publicity and the nature of the charges. Id. The

Second Circuit concluded that the defendant’s right to be

present was violated, stating that “[p]re-screening of a jury

venire is not comparable to the brief conference between

judge and juror in [Gagnon], nor a procedure at which a

defendant’s presence would be ‘useless,’ as per [Snyder].” 

Id. at 489 (internal citations omitted). Cohen is

distinguishable from this case on several levels. There, the
UNITED STATES V. REYES 25

trial court questioned all of the prospective jurors outside of

the defendant’s presence rather than just one prospective

juror. And the Cohen court did not indicate that the

defendant’s attorney was permitted to pause the presumably

lengthy “pre-screening” process with all of the prospective

jurors to confer with his client about their answers.

To the extent that Cohen can be read as holding that the

defendant’s absence from a portion of voir dire always causes

a violation of the constitutional right to be present, we

respectfully disagree. In Snyder, the Supreme Court

specifically mentioned the defendant’s right “to be present at

the examination of jurors” before holding that “the presence

of a defendant is a condition of due process to the extent that

a fair and just hearing would be thwarted by his absence, and

to that extent only.” Snyder, 291 U.S. at 106–08 (emphasis

added). We therefore follow the rule that the exclusion of the

defendant from a portion of voir dire violates the Constitution

only if “his absence might frustrate the fairness of the

proceedings.” Faretta, 422 U.S. at 819 n.15; see also Bland,

459 F.3d at 1020–21; Washington, 705 F.2d at 497 n.5. 

Applying this rule, we conclude that although the district

court’s decision to conduct voir dire of Juror H outside of

Reyes’s presence was inconsistent with Rule 43, it did not

violate the narrower protections afforded by the Constitution.

2. The seventeen other side bar exchanges

The district court’s decision to exclude Reyes from the

seventeen other side bar exchanges—where the attorneys

argued that jurors should be excused for cause, exercised

peremptory challenges, and discussed whether to proceed in

the absence of some prospective jurors—was likewise

consistent with the Constitution. These conferences on
26 UNITED STATES V. REYES

questions of law are prototypical examples of instances

“when presence would be useless, or the benefit but a

shadow.” Snyder, 291 U.S. at 106–07. Reyes would have

merely observed the proceedings while the attorneys made

arguments about which jurors should be excused for cause

and exercised peremptory challenges. As in Gagnon, he

“could have done nothing had [he] been at the conference,

nor would [he] have gained anything by attending.” Gagnon,

470 U.S. at 527.

In Fontenot, we held, on plain error review, that the

district court did not err in having the attorneys exercise their

peremptory challenges outside of the defendant’s presence

where, as here, the defendant had the opportunity to confer

with his lawyer after voir dire and before the conference. 

Fontenot, 14 F.3d at 1370. Furthermore, Reyes was able to

observe the composition of the jury on an ongoing basis and

correct any mistakes made by his lawyer in exercising his

peremptory challenges because the district court struck each

juror in open court. See Cohen, 290 F.3d at 490 (holding that

the defendant “did not have a constitutional right to be

present during the juror challenges” conducted in his absence

where he “was represented by counsel at these sessions, . . .

given an opportunity to consult with counsel before the

sessions began, and . . . the challenges were later effectuated

in open court”); Gayles, 1 F.3d at 738; Bascaro, 742 F.2d at

1349–50. This is not a case where the defendant was absent

when jurors were excused or when the jury was impaneled. 

See Thomas, 724 F.3d at 643 (“[I]f a defendant is not present

during the reading of the list of jurors not struck (the moment

the strikes are given ‘formal effect’) then the absence is in

derogation of his constitutional right to be present.”).
UNITED STATES V. REYES 27

The district court’s decision to exclude Reyes from the

side bar conferences did not violate his constitutional right to

be present. Because no constitutional violation occurred, we

need not address whether the alleged error was harmless

beyond a reasonable doubt.4

4 Reyes contends that excluding a defendant from a portion of jury

selection is a structural error that is not susceptible to harmless error

review. Although we need not address the issue in this case because no

constitutional violation occurred, we note that we have previously held

that a violation of the defendant’sright to be present is subject to harmless

error review. See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005)

(en banc) (“The Supreme Court has never held that the exclusion of a

defendant from a critical stage of his criminal proceedings constitutes a

structural error. To the contrary, in [Rushen, 464 U.S. at 117], the Court

determined that the fact that the defendant was denied the right to be

present during an ex parte communication between the judge and a juror

was a trial error that was subject to harmless error analysis.”); Bordallo,

857 F.2d at 522–23 (holding that the “violation of a defendant’s due

process right to be present at all stages of trial is subject . . . to the

harmless error rule” in a case where the defendant was not present when

the district court excused prospective jurors, some of whom it concluded

were friends or supporters of the defendant (internal quotation marks and

citation omitted)).

Reyes relies on United States v. Gonzalez-Lopez, 548 U.S. 140

(2006), where the Court held that the “erroneous deprivation of the right

to counsel of choice . . . qualifies as ‘structural error.’” Id. at 150 (internal

quotation marks and citation omitted). But Gonzalez-Lopez does not

affect our cases holding that the erroneous deprivation of the defendant’s

right to be present is subject to harmless error review. We have continued

to apply these precedents after the Supreme Court issued its opinion in

Gonzalez-Lopez. See Marks, 530 F.3d at 812 (“If the denial of the right

to be present rises to the level of a constitutional violation, then ‘the

burden is on the prosecution to prove that the error was harmless beyond

a reasonable doubt.’” (quoting Rosales-Rodriguez, 289 F.3d at 1109));

Hovey v. Ayers, 458 F.3d 892, 903 (9th Cir. 2006) (“[A]s we recently held

in Campbell v. Rice, a violation of the right to be present is trial error,

subject to harmless error review.”).
28 UNITED STATES V. REYES

III.

Finally, Reyes contends that his sentence is substantively

unreasonable. “The substantive reasonableness of a sentence

. . . is reviewed for abuse of discretion.” United States v.

Autery, 555 F.3d 864, 871 (9th Cir. 2009).

The district court imposed a sentence of 125 months’

imprisonment, with thirty-six months to run consecutive to

the state sentence that Reyes was already serving for having

pled guilty to second-degree robbery. The sentence was at

the high end of the Guidelines range of 100–125 months. “In

determining substantive reasonableness, we are to consider

the totality of the circumstances.” United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). “The

overarching statutory charge for a district court is to ‘impose

a sentence sufficient, but not greater than necessary’ to reflect

the seriousness of the offense, promote respect for the law,

and provide just punishment; to afford adequate deterrence;

to protect the public; and to provide the defendant with

needed educational or vocational training, medical care, or

Other courts have likewise held that a violation of the defendant’s

right to be present is not a structural error. See, e.g., United States v.

Rivera-Rodriguez, 617 F.3d 581, 601–04 (1st Cir. 2010) (holding no

structural error where the district court questioned fifteen prospective

jurors outside of the presence of the defendants and their attorneys);

United States v. Riddle, 249 F.3d 529, 535 (6th Cir. 2001) (“[T]he right to

be present at voir dire is not one of those structural rights whose violation

constitutes per se error.”); Feliciano, 223 F.3d at 111 (“[D]efendants have

cited no case—and we have found none—in which an appellate court has

found a structural defect where a defendant was present throughout but

unable to hear a circumscribed portion of voir dire, and whose counsel

was allowed to consult with him about the limited questioning outside his

hearing.”).
UNITED STATES V. REYES 29

other correctional treatment.” Id. at 991 (quoting 18 U.S.C.

§ 3553(a)).

The district court did not abuse its discretion in imposing

the sentence in this case. At the sentencing hearing, the court

referenced Reyes’s extensive criminal history and tendency

to commit crimes soon after being released from custody. 

Reyes committed the attempted bank robbery at issue here

less than a week after he was released from California state

prison, where he served part of a sixteen-month sentence. He

is presently serving a state sentence for a robbery he

committed two weeks after the attempted bank robbery. On

five previous occasions, Reyes was convicted of offenses that

he committed within a few months after being released from

prison. While only one of his previous offenses involved

violence, Reyes’s criminal history is lengthy and serious

enough to support the district court’s conclusion that a

sentence at the high end of the Guidelines range was

necessary to promote respect for the law and to deter him

from committing additional crimes. See United States v.

Ruiz-Apolonio, 657 F.3d 907, 920 (9th Cir. 2011); United

States v. Ringgold, 571 F.3d 948, 953 (9th Cir. 2009). The

district court also noted that Reyes’s attempted bank robbery

involved a threat of violence. Although there was no

evidence that Reyes was actually armed, a threat of violence

used to enable a bank robbery could nevertheless place

bystanders at risk as security guards and police officers

proceed on the assumption that the defendant is carrying a

weapon. Cf. United States v. Bendtzen, 542 F.3d 722, 724,

728–29 (9th Cir. 2008).

Reyes’s reliance on United States v. Amezcua-Vasquez,

567 F.3d 1050 (9th Cir. 2009), is unavailing. There, we

deemed a sentence substantively unreasonable because it was
30 UNITED STATES V. REYES

based on a sixteen-level enhancement for a violent felony that

the defendant had committed twenty-five years earlier, and

there was no indication that the defendant had “harmed or

attempted to harm another person or the property of another

for the past twenty years.” Id. at 1056. Here, by contrast,

Reyes’s criminal history is both extensive and recent. See

United States v. Valencia-Barragan, 608 F.3d 1103, 1109

(9th Cir. 2010).

The district court did not abuse its discretion in surmising

that a sentence at the high end of the Guidelines range was

necessary to provide just punishment and protect the public

when the circumstances of the offense are viewed in

combination with Reyes’s criminal history. “[O]ur review of

the substantive reasonableness of a sentence is deferential and

will provide relief only in rare cases.” United States v.

Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc). This

is not one of those “rare cases” where the district court

abused its discretion by imposing a substantively

unreasonable sentence.

IV.

We conclude that the district court’s decision to conduct

voir dire of Juror H outside of Reyes’s presence violated

Federal Rule of Criminal Procedure 43. But the error was

harmless because “there is no reasonable possibility that

prejudice resulted from the absence.” Marks, 530 F.3d at 813

(internal quotation marks and citation omitted). We hold that

Reyes’s exclusion from the side bar exchanges during jury

selection did not violate his constitutional right to be present

because the conferences were not instances where the

defendant’s “absence might frustrate the fairness of the

proceedings.” Faretta, 422 U.S. at 819 n.15. Rather, any
UNITED STATES V. REYES 31

benefit of Reyes’s presence at side bar would have been “but

a shadow.” Snyder, 291 U.S. at 106–07. Finally, we

conclude that the district court did not impose a substantively

unreasonable sentence. We therefore AFFIRM the district

court’s judgment.