F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J O E A N G E L R E Y E S , D efendant-Appellant

. No. 12-50386

D.C. No. 2:11-cr-00675-J AK-1

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ohn A. Kronstadt, District J udg e, Presiding

Arg ued and Submitted March 4, 2014—Pasadena, California

F iled September 4, 2014

B efore: J ay

S. B y bee, Carlos T. B ea, and Morg an Christen, Circuit J udg es.

Opinion by

J udg e B y beeU N I T E D S T A T E S V

. R E Y E S 2

SUMMARY *

Crim inal Law

The panel a ffirmed a co n v i c tion and sentence for attempted bank robbery in a case in which th e d ef endant

c o n tended that the district court violated his r ig ht to b e p resent at trial by ex cluding h im from certain side ba r

ex c h a ng e s during jury

selection.

The panel held that under F ed. R. Crim. P

. 43, the defendant h as a rig ht to be personally present during voir dire of prospective jurors, and that the district court v iolated Rule 43 w hen it q

uestioned J uror H outs i d e o f the defendant’s earshot. The panel held that the error was harmless because the evidence of the defendant’s g uilt was overwhelming

.

The panel held tha t m e eting s between counsel and the
court at which the participants discuss whether jurors should be ex cused for cause, ex ercise peremptory challeng e s , o r decide whether to proceed in the absence of prospective ju r o r s are all ex amples of “a conference or hearing on a q uestion o f law” from which the d efendant may , u nd e r Fe d

. R. Crim. P. 43(b)(3), be ex cluded at the district c o u rt’s discretion. The panel therefore held that the district court did
not violate Rule 43 when it ex cluded the defendant from seventeen other side bar ex chang es.

The p anel held that the d e f e ndant’s ex clusion from the side b ar conference at which the district court conducted voir

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. R E Y E S 3

dire of J uror H did not violate the defendant’s constitutional

r i g ht to be present because the defendant’s presence wou l d h a v e b een “but a shadow”; it was not an instance where t h e defendant’s absence mi gh t frustrate the fairness of the proceeding s. The panel held that the district court’s decision
to ex clude the defendant f r om the seventeen other si d e b a r

ex c h a ng e s – where the a ttorney s arg u ed that jurors should be

ex c u sed for cause, e x ercised peremptory ch a l l eng es, a nd d iscussed whether to proceed in the absence of s o m e prospective jurors – was likewise consistent with the Constitution.

The panel concluded that the district court d id not impose a substantively

unreasonable sentence.

COUNSEL

Matthew B

. L a r s en ( a r g ued), Deputy F ederal Public Defender; Sean K. Kennedy
, F ederal Public Defender, L o s Ang eles, California, for Defendant-Appellant.

Michael Dore (arg

ued), Assistant U nited States Attorney
, Violent and Org aniz e d C rime Section; Robert E

. Dug dale, Assistant U nited States Attorne y , Chief, Criminal D ivision; Andre B irotte, J r., United States Attorney
, United S t at e s Attorney s’ Office, L os Ang eles, Califo r n ia, for PlaintiffAppellee.U N I T E D S T A T E S V

. R E Y E S 4

OP INION

B YB EE, Circuit J udg e:

J oe Ang el Rey es appeals h is conviction of one count o f attempted b a

nk r obbery in violation of 18 U.S.C. § 2113(a). Rey es raises two arg uments on appeal. F irst, he contends that the di s t rict court violated his rig ht to b e present at trial b y

ex c luding him from certain side bar e x chang es during jury selection. Second, he asserts that his sentence is

su b stantively unreasonable. W e have jurisdiction under 28 U.S.C. § 1291. W e affirm.

I

.

A. Jury Selection

A federal g rand jury returned a n indictment charg ing Rey es with two counts of bank robbery and t w o c o u nts o f attempted b a

nk r obbery in violation of 18 U.S.C. § 2113(a). The district court conducted voir d ire on Mar ch 6
, 2012. Rey es was present in the courtroom with his attorney s. After questioning the first twelve j u ro r s in open court, the district
court conferred with the attorney s r epresenting Rey e s and the
g overnment at side b a

r

. The cour t beg an by asking Rey es’s attorney , J ohn L ittrell, whether a ny jurors should be e x cused for cause. After the lawy ers d iscussed which jurors should be

ex c u sed, L ittrell requested that Rey es himself be permitted to participate at the side bar conferences with the lawy ers. The
court denied the request, advising L ittrell that “I f y ou wish to confer with y our client while we’re here, y ou can do so” a nd

ex p laini ng that “I ’ve never had a c lient participate in a side bar on jury selection because I count o n the lawy ers that y ou know what y ou’re d oing to communicate with y our c lient a ndU N I T E D S T A T E S V

. R E Y E S 5

ge t the data and convey it to me.” The c ourt then reitera t e d
to L ittrell that “I f in the course o f w h a t w e’re discussing something comes up that y ou want to talk to him a b o u t at any time, please let me know.” L ittrell d eclined to confer with Rey es at that p oint. At the nex t side b ar conference, the court told defense counsel, “I know y our client is n o t here and–y ou have a standing

objection on that.”

The d i s t r i ct court held a total of eig hteen side bar conferences wi th the attorney s during the c ourse of jury

se lection. Consistent with the court’s decision, Rey e s

r emained at the table during each ex chang e rather th a n joining the lawy e rs at the bench. On f our occasions, Rey es’s attorney s asked f

or a moment to confer w ith Rey es, and e ach time the court g ranted the request and conf i r m e d t hat they were welcome to speak with their client before proceeding

.

At seventeen of the eig h teen side bar co nferences, the attorney s either discussed whether a juror should be e x cused for c ause, ex ercised a peremptory chall eng e , or conversed about w hether voir dire should p roceed even thoug h two o f the prospective jurors had y et to return from lunch. A t no point during these seventeen conferences did the attorney s o r the court speak with a prospective juror or any one else.

During one of the eig hteen side bar e x chang es, the court briefly questioned a prospective juror, who we will refer to a s J uror H, outside of Rey es’s e arshot. As part of its s t a n d a r d line of q uestioning
, the district c ourt a sked J u ror H in open court whether a

ny of the matters discussed “raises a question with y ou a s to y our ability to be fair and impartial.” J uror H answered “Yes, I have a personal issue,” and accept ed the court’s invitation to speak privately

. T he court then
q u estioned J uror H at the bench with the lawy ers for b o t hU N I T E D S T A T E S V

. R E Y E S 6

Rey es a n d t he g overnment present. J uror H informed the
court that a woman w ith whom her s o n h a d a c hild h ad robbed nine banks about five y ears earlier. J uror H said “I d o n’t know if I can be f

air” because she thoug ht the wo m a n should have been p unished more harshly than she was for robbing the banks. The c o u r t a ga in a sked J uror H whether she could fairly evaluate the case as a juror and she responded “I ’m not sure” and “I can’t say .” Nex t, t h e court ex p lained that e very one has been shaped b y their prior ex periences, a nd J uror H replied “That’s true” and “I d on’t want to be unfair.” The court instructed J uror H to further consider whether she could b e fair a

nd sent her b ack to her seat. The attorney s for both Rey es and the g overnment recommended that J u ror H ’s
status as a juror be resolved immediately

. The court then h ad the following ex chang e with J uror H in open court:

The Court: Ms. [ H ]
, we spoke at the side; a nd I asked y ou to reflect on what w e talked about. Have y

ou had enoug h time to do that, or do y ou need more time?

J uror H: I think I ’m okay

with the time.

The Court: W hat’s y our present thinking ? Can
y ou be fair and impartial in this case?

J uror H: I t’s like, what is fair?

The Court: W ell, fair means that y ou listen to the e vidence a

nd evaluate it and y ou do so in an impartial way

.

J uror H: Yes, I

believe so.U N I T E D S T A T E S V

. R E Y E S 7

After the ex chang e b e t ween the c ourt and J uror H, Rey es’s attorney ex ercised a peremptory c halleng e on a different prospective juror. Neither party ex c u sed J uror H, who served

on the jury that c onvicted R e y e s of a ttempted bank r obbery

.

B

. Trial

At trial, the g overnment adduced evidence that Rey es h ad robbed tw o b anks a

nd attempted to rob two others b etween September 2 4, 2010 and October 7, 2 010. A teller at a W ells F arg o bank b ranch in L o s Ang eles testified that, on September 2 5, 2010, Rey es approached the counter where he

was w orking a n d handed him a note. T he note, which the
g overnmen t i n t r oduced into evidence, said “Don’t B e a Hero—this is a B ank Robbery [ .] I h ave a g er n a de [ sic] a nd i f y o u [ ex pletive] up I ’ll pull it!! trust & B e lieve[ .] I am a Psy c ho Killer.” T he teller testified that when he turned to g et his manag er’s a ttention, Rey es left the bank without r eceiving
any money

. The g overnment introduced s u r veillance photog raphs from the bank’s cameras d epicting the event, a nd the teller confirmed that he h ad previously identified Rey e s

as the man w h o p a s s ed him the note. The g overnment introduced similar evidence f rom the o ther three banks that it accused Rey es of robbing or attempting to rob—namely
, the testimony of bank employ ees who identified Rey es, surveillanc e f

ootag e from the banks, and demand notes alleg edly used by Rey es.

Detective Veronica Conrado testified about interviewing Rey es on the nigh t that he was arrested. The g overnment introduced a

n a udio recording of the interview, during which Rey es described committing the four completed a nd
at t empted b ank robberies. Conrado testified that Rey e s confirmed he was the man pictured in two bank surveillanceU N I T E D S T A T E S V

. R E Y E S 8

photos and that he w r o t e two of the demand notes produced by the detectives.

After five h ours of del i b e r a t i ons, the forewoman informed the district court that the jury was deadlocked on three of the four counts. At the u rg i n g of defense counsel, the court declined to a sk the jury to continue d eliberati n g. T he jury returned a verdi ct finding Rey es g uilty on c ount two of the indictment, which is attempt ed robbery of the W ells F arg o bank b ranch in L os Ang eles on Septembe r 25, 2010. The
court declared a mistrial on the other count of a ttempted bank robbery and the two counts of completed bank robbery

. The
court later enter e d judg ment on the jury ’s g uilty verdict on count two of the indictment.

C. Sentencing

B e fore he was indicted in this case, R e y es p l ed g uilty in California state court to the second-deg ree robbery of a shoe
store that occurred about two weeks after the attempted bank robbery at issue here. He was sentenced to a term o f fifteen
y ears in state prison, which he was serving at the time h e was sentenced in this case.

The presentence report calculated a total offense level o f twenty -four a n d a criminal history c ateg ory of VI
, resulting in a sentencing r ang e of 10 0

– 1 2 5 m onths. The p robation officer did not identify

any factors warranting

a departure or variance f

r o m the G uidelines rang e. At the sentencing hearing
, Rey es’s counsel requested a sentence of 1 0 0 months’ imprisonment, with twelve months to run consecutive to the fifteen-year state sentenc e. The g overnment requested 125 months’ imprisonment, w ith fifty months to run consecutive
to the state sentence. The district court imposed a sentence o fU N I T E D S T A T E S V

. R E Y E S 9

125 months, w ith thirty -six months to run consecutive to the state sentence, along

with three y ears of supervised release.

I n reviewing the f

actors specified in 18 U.S.C. § 3553(a), the c ourt emphasiz ed that Rey es had ex hibited a “long pattern

o f criminal conduct” and had repeatedly committed ad d i t i o n a l crimes soon afte r b e i ng r eleased from state custody

. I t also stated that the a t t e m p t ed bank robbery involved a threat o f violence b ecause the note that Rey es passed to the W ells F arg o teller said that he had a g renade.

I I

.

W e first address Rey es’s contention that the district court impermissibly e x cluded him from ei ghteen side bar

ex c h a ng e s during jury selectio n

. Althoug h w e review the district court’s co n d u ct of voir d ire for abuse of discretion, United States v. Sherwood
, 98 F .3d 402, 407 (9th Cir. 1996),
q u e s t i o n s o f law that arise during the course of voir dire a re reviewed de novo, United States v

. Beard
, 1 6 1 F.3d 1190, 1193 (9th Cir. 1998).

A. Statutory and Constitutional Framework

A c riminal defendant has both a statutory and a

c o nstitutional rig ht to b e “ present” during trial proceeding s. The source of the statutory rig ht is F ederal Rule of Criminal Procedure 43, which provides in r e l evant part that “the defendant must be present a t

. . . e very trial stag e, including jury impanelment and the return of the verdict,” F ed. R. Crim. P. 43(a)(2), but t h e “ d efendant need not be present

. . . [ if] [ t] h e p r oceeding involves o nly a conference or h earing on a question of law,” F e d . R. Crim. P. 43(b)(3).U N I T E D S T A T E S V

. R E Y E S 10

On the c o n stitutional level, “[ a] person charg ed w ith a felony has a f

undamental rig h t to be present a t every stag e o f the trial

. . . [including ] the v oir di r e a nd empanelling of the j u r y

. ” Campbell v. W

ood
, 18 F

. 3d 662, 671 (9th Cir. 1 9 9 4 ) (en banc) (citing Illinois v. Al l en , 397 U.S. 337, 3 38 (1970) and D iaz v. United States
, 223 U.S. 442, 455 (1912)). “The rig ht of presence d e r ives from the Confrontation Cl a u s e o f the Six th Amendment and t h e Due Process Clauses of the F ifth and F ourteenth Amendments.” Id. (citing United States v. Gagnon , 470 U.S. 522, 526 (1985) (per curiam)).

I mportantly
, the scope o f Rule 43 is broader t han the
scope of the constitutional rig ht to be present. S ee United States v. Rosales-Rodriguez
, 289 F .3d 1106, 1 1 09 (9th Cir. 2002) ( stating that, in addition to the constitutional rig ht to be present, “[ t] h e defendant also has a broader statutory rig ht to be present ‘at every stag e of the trial including the impaneling of the jury and the return o f the verdict’” (quoting Fe d

. R. Crim. P. 43)); United States v

. S herman
, 821 F .2d 1337, 1339 (9th Cir. 1987) (“The rig ht to b e present at every stag e of the trial set forth in Rule 4 3 is more far-reaching than the rig h t o f

a defendant to attend his trial as g uarantee d b y the Constitution.”). The statute sweeps more broadly than the correspondin g constitutional rig ht because Rule 43 incorporated the more ex pansive common law understanding of the rig ht as well as the constitutional standard. See United States v. Rolle
, 204 F .3d 133, 137 ( 4th Cir. 2 000) (citing F ed. R. Crim. P. 43, 1944 Advisory Committee Note, Para. 1).U N I T E D S T A T E S V

. R E Y E S 11

B

. Federal Rule of Criminal Procedure 43

1. Violation of F ederal Rule of Criminal Procedure 43

As a n initial matter, we must d ist i n g uish between two different kinds o f side b ar ex chang es that occurred during jur y selection in this case. On one occasion, the court questi o n e d a prospective juror—J u ror H—at the bench. On
seventeen oth e r occasions, the lawy ers for both parties met the court a t side bar to request that jurors be ex cused for
cause, ex ercise peremptory challeng e s, or discuss w hether to continue w ith the p roceeding s e v e n thoug h two prospective j u r o r s had not y et returned from lunch. During those
seventeen e x chang es, nei t her the court nor the attorney s spoke w ith a prospective juror or any one else. W e conclude that the district court violated Rule 4 3 when it qu e s t i oned J uror H outside of R e y e s’s earshot, but the district c ourt did
not violate Rule 43 by refusing Rey es’s r equest to be present during the other seventeen side bar ex chang es.

a. Voir dire of J uror H

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

. . . every tria l s t a ge

. ” I n the contex t o f analy zing the constitutional r ig ht to be present, w e have ex plained that voir dire is a trial stag e. See Campbell
, 18 F .3d at 671. B ecause Rule 43 encompasses the constitutional rig h t to be present, voir dire is also a “tria l s t a ge” as the phrase is used in the rule. See Rosales-Rodriguez
, 289 F .3d at 1109. The
term “voir dire” means, among other thing s, “[ a] preliminary

ex a mination of a p rospectiv e juror by a judg e or lawy er to decide whether the prospect is q ualified and suitable to serve

on a jury .” B lack’s Law D ictionary 1 710 (9th ed. 2009). The district c ourt thus conducted “ v oir d ire” of J uror H at side barU N I T E D S T A T E S V

. R E Y E S 12

when it asked about her ability to be f air and impartial in lig ht of her p e rsonal ex periences with bank r obbery
, because the conversation c on ce r n e d w hether she was “qualified a nd suitable to serve on a jury .”

W e have pr e v i o u sly observed that “[ t] here is authority that Rule 43 requires the defendant’s presence at the voir dire

ex a minat i o n of prospective jurors.” United States v

. Bordallo
, 857 F .2d 5 19, 522 (9th Cir. 1988), am e n de d o n reh’g by 872 F .2d 334 (9th Cir. 1 9 8 9 )

. I ndeed, other courts have held that the defendant has a statutory rig h t to be present wh e n 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) (discussing Rule 43 in concluding that “the district
court likely

did err in ex cluding Defendant, over his ex press objection, from a p art of t h e c o n f idential voir dire o f 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 r ig ht to be present during the bench conferences with the j urors”); United S tates v. W

ashington
, 705 F .2d 48 9, 497 ( D.C. Cir. 1983) (per curiam) ( “[ T] h ere is little d oubt that under rule 43, the appellant h ad a r ig ht t o h e a r that part of the voir dire conducted at the bench after counsel made his request.”).

W e ag ree with these courts that, under Rule 4 3, the defendant has a rig ht to be personally present during voir dire of prospective jurors. The district court erred by questioning J uror H to determine whether she was “qualified and suitable
to serve on a jury ” when Rey es had a standing objection toU N I T E D S T A T E S V

. R E Y E S 13

his ex clusion from the side bar conferences. 1 The c ourt could have c omplied with Rule 43 either by permitt i n g R e y e s to join his attorney at the bench while the court conversed with J uror H or by

questioning her in open court.

b. The seventeen other side bar ex chang es

The d istrict court did not violate Rule 43, however, when it ex cluded Rey e s from the seventeen other sid e b ar

ex c h a ng e s. A ccording to Rule 43(b)(3), the “ defendant need
not be present

. . . [ if] [ t] he p roceeding invo lves only a conference or h earing on a question o f law.” W e have not y et squarely decided whether Rule 43 r e q u ires the defendant’s presence where, as here, the attorney s meet with the court to discuss which jurors t o d i s miss for cause, ex ercise peremptory challeng es, or consider whether t o proceed with voir dire in the absence of some prospective jurors. 2 W e n ow

1 T h e ex ch an g e w ith J u

ro r H w as b rief

, b u t th e lan g u ag e o f th e statu te d o es n o t allo w

f o r ex cep tio n s o n

th e b asis th at th e trial stag e f ro m w h ich th e d ef en d an t w as ex clu d ed w as b rief , red u n d an t, o r u n im

p o rtan t.

2 I n Un i ted S ta tes v. Fo n ten o t , 1 4 F .3 d 1 36 4 (9 th Cir. 1 9 9 4 )
, w e

e x p ressly ref

rain ed f ro m d ecid i n g w

h eth er Ru le 4 3 m an dated t h e d ef en d an t ’ s p resen ce at a p erem p t o ry ch allen g e co n f

eren ce. Id

. at 1 3 7 0 & n .2

. W e h eld th at it w as n o t plain erro r f o r th e d istrict co u rt to receiv e th e p arties’ p erem

p to ry ch allen g es o u tsid e o f th e presen ce o f th e d ef en d an t

w h en th e def

en d an t “ h ad t h e o p p ortu n ity to d iscu ss h is m isg i v in g s w i th

co u n sel d u rin g an d im

m ed iately f

o l lo w in g v oir d ire, p rio r to ex ercisin g h is
p erem p to ry ch allen g es.” Id

. at 1 3 7 0

. B u t w e d id n o t d ecid e w h eth er th e p erem p to ry ch allen g e co n f

eren ce is a “ trial stag e” u n d er Ru le 4 3 (a)(2 ) or

w h eth er it is a “ h earin g o n

a q u estio n

o f law ” u n d er Ru le 4 3 (b )(3 ).

Ou r d ecisio n in Bo rd

a llo also d id n o t reach t hi s issu e. T h ere, w e

o b serv ed th at Ru le 4 3 d istin g u ish es “ b etw een th e m in isterial s t a g e of d raw in g th e p ro sp ectiv e j u ro r po ol an d t h e f o rm al p retrial n arro w in g o f th e p o o l th ro u g h v o ir d ire f

o r a p articu lar trial.” Bo rd a llo , 8 5 7 F.2 d at 5 2 3

.U N I T E D S T A T E S V

. R E Y E S 14

hold that meeting s between counsel and the court at which the participants discuss w h e t her jurors should be ex cused for
cause, ex e rcise peremptory chal leng es, or decide whether to proceed in the absence of prospective jurors are all ex amples of “a conference or hearing on a question of law” from which the defendant may be e x cluded at the district court’s discretion.

“Althoug h [ Rule 43(b)(3)] leaves the term ‘question o f law’ undefined, the t e r m t y p ically refers to ‘[ a] n issue to be decided by the judg e, concerning the application o r inte r p r et ation of the law.’ An issue can be a ‘question o f law,’ moreover, ‘althoug

h it may turn on a factual point,’ so l o n g as it ‘is reserved for the court and ex cluded from t h e jury .’” United States v

. Gonzales-Flores
, 701 F .3d 112, 116 (4th Cir. 2012) ( second alteration in orig inal) (internal citation omitted) (quoting Black’s Law Dictionary 1 366 (9th ed. 2009)). W hether a prospective juror s h ould b e e x cused

W e n o t e d t h a t “th ere is au th o rity th at th e def en d an t h as n o rig h t t o b e p resen t d u rin g th e d raw in g o f th e j u ry b y th e j u ry co m m i ssio n ers,” w

h ile, b y c o n trast, “ [t]h ere is au th o rity th at Ru le 4 3 req u ires th e d ef en d an t’ s p resen ce at th e v o ir d ire ex am in atio n of p ro sp ectiv e j u ro rs.” Id

. a t 5 2 2

. W e co n clu d ed th at th e d istrict co u rt erred b y ex clu d in g certain j u ro rs f ro m th e j u ry p o o l b ef

o re eith er t

h e def en d an t or h is law

y er arriv ed b ecau s e th e

a c t i o n w as m o re an alo g o u s to “ th e v o i r d ire ex am in atio n o f p ro sp ecti v e j u ro rs” th an “ th e m in isterial stag e of d raw in g t h e p ro sp ectiv e j u ro r p o o l.” Id

. at 5 22

– 2 3

. B u t w e h ad n o reaso n to co n sid er w h eth er th e p ro ceed in g s at issu e w ere “ a co n f

eren ce or h earin g on a q u estio n o f law ” su ch th at th e d ef en d an t ’ s p resen ce w as n ot req u i red

. T h e d i strict co u rt in Bo rd a llo did

n o t h o ld a “ co n f

eren ce” o r “ h earin g ” o n w h ich j u ro rs to ex cu se, g iv en th at it m ad e th e d e c i s io n o n its o w n w i th o u t co n f

errin g w ith co u n sel an d

w ith o u t ev en w aitin g f

o r th e atto rn ey s to arriv e in co u rt. Id

. at 5 2 2

. Here, th e d i strict co u rt alw ay s co n f erred w ith th e atto rn ey s f o r b o th p a r t ies b ef o re ex cu sin g j u r o rs, an d th en d ism issed th e j u ro rs in op en co u rt in Rey es’ s p resen ce.U N I T E D S T A T E S V

. R E Y E S 15

initially involves a fact-intensive inquiry into her a nswers a nd demeanor during voir dire, among other thing s. That is why

we held, supra , that the district court erred by conducting voir di r e o f J uror H outside of Rey es’s presence, thereby
p otentially depriving him of information that he need e d t o assist his attorney s in m a k i n g a n informed decision about whether she should be seated on the jury

.

B u t the side bar e x chang es where the attorney s a rg u ed that certa i n p rospective jurors should be ex cused f or cause consist e d solely of leg al arg uments based on facts that h ad already been elicited in Rey es’s presence. The district court’s d e t e r mination whether to ex cuse a particular prospectiv e j u r o r for cause is a q

u e s t i o n o f law. See Perez v. Marshall
, 1 1 9 F .3d 1422, 1426 (9th Cir. 1997) (“W hether a trial co u r t vi olates a defendant’s Six th Amendment rig ht to a jury trial by ex c using a juror f

or g ood cause and replacing t h a t juror

w i t h an alternate is a question of law

. . . . ” ). A side bar

ex c h a ng e where the court decides whethe r to ex cuse a juror for cause is, therefore, “a conference or h earing on a question of law” a t w hich the d efendant need not be pr e s ent under Ru l e 4 3(b)(3). L ikewise, a side bar ex chang e where the attorney s e x ercise peremptory chall e n ge s involves only the application of leg al rules, such as whether the parties have used no more than the allotted number of peremptory challeng es. Other th a n the sing le instance where the court questioned J uror H, all of the side b ar c onferences in this case

were properly conducted outside of Rey es’s presence because they involved “[ a] n issue to be decide d b y the judg e , concerning the application or interpretation of t h e law.” Gon zales-Flores
, 701 F .3d at 116 (quotation marks a nd citation omitted).U N I T E D S T A T E S V

. R E Y E S 16

W e offered g uidance on determ i ning whether a conference or hearing involves a “question of law” in United States v. Veatch
, 674 F .2d 1217 (9th Cir. 1981). T h ere, the defendant w as ex cluded from a pretrial c onference where the
court and attorney s discussed the defendant’s motion for an evidentiary hearing re ga r d i ng his competency to stand trial and motions related to a proposed insanity defense. Id. at 1225. W e held that Rule 43 did not mandate the defendant’s
presence because h i s “presence would have contributed nothing substantial to his opportunity to defend s i nce the
matters discussed predominantly involved questions of law.” Id. a t 1 2 2 6

. Other c ourts have similarly reasoned that the d efendant’s ex clusion from a c onference o r hearing is permitted by Rule 43(b)( 3 ) when the d efendant’s presence would probably be meaning less as a practica l matter. See,
e.g. , Gonzales-Flores
, 7 01 F .3d at 118 ( “[ T] he whole point o f the rig ht to be present (in both its constitutional and statutory dimensions) is to permit the defendant to contribute in some meaning ful way to the fair and a ccurat e r e solution of the proceeding s ag ainst him.”); U nited S tates v. Jones
, 674 F .3d 8 8
, 94 ( 1st Cir. 2 012) (“Rule 43 carves out an ex p li c i t

ex c e ption f

or ‘a c onference or hearing on a question of law,’ the rationale surely being tha t a defendant’s presence on a leg al issue (whether at sidebar or in chambers) is not g oing to aid the defense counsel in making such a rg uments.” (internal citation omitted)); Un ited States v. Moe
, 536 F

. 3d 825, 830 (8th Cir. 2 008) (ex p l a i ning that a number of judicial “decisions reflect an understa n d i n g that the Rule 4 3(b)(3)

ex c e ption hing es on whether the defendant’s absence would impact h is ‘opportunity to defend ag ainst the charg e ’” (quoting Gagnon , 470 U.S. at 526)).

H er e , Rey es’s presence at the seventeen side bar

e x c h ang es where neither the attorney s nor the court s p o k eU N I T E D S T A T E S V

. R E Y E S 17

with a prospective juror “would have cont r ibuted nothing substantial to h is opportunity to defend.” Veatch
, 674 F .2d at 1226. The court placed no limits on Rey es’s ability to convey to h is attorney s which jurors he thoug ht should be ex cused for

c a u se or how he w anted to use his peremptory c hallenge s

. And it permitted Rey es’s lawy ers to c onfer with thei r client before making dec i s i o n s, thereby g iving his counsel an opportunity to ex plain the go v er nment’s position to Rey e s after the side bar ex chang es. The court also identified in open court each juror that had b e e n ex cused so that R e y e s would have known if his attorney s ha d mistakenly challeng ed the
wrong juror.

Several o t h e r courts h ave 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, 7 16 ( 5th Cir. 2011) (holding that the defendant’s “rig ht to be p r esent at every stag e of h is trial” was n o t vi o lated where h e “was present when the peremptory challeng es were g iven formal effect v ia the impaneling of the jury ” and had an “ opportunity
to consult with his attorney before his a ttorney submitted the peremptory challeng es”); United States v

. Gayles
, 1 F .3d 735, 7 3 8 (8th Cir. 1993) (“[ The d e f endant] was present i n t h e courtroom while the potential jurors were ques t i o ned. Althoug h [the defendant] w as absent later when his attorney made his strikes

. . . [ the d efendant] was pr e s e n t i n the
courtroom when the cl erk g ave the strikes effect by r eading of f t h e list of jurors who had n ot been stricken.

. . . [ The defendant] was sufficiently p resent at the jury ’s impanel i ng to satisfy Rule 43 and the Constitution.”); United S t a t e s v

. Bascaro , 742 F .2d 1335, 1 3 49–50 (11th Cir. 1984) (holding that “the defendants were sufficiently p resent at the impaneling of the jury to satisfy the six th a mendment a nd Rule 4 3” where the defendant s were in the courtroom whenU N I T E D S T A T E S V

. R E Y E S 18

voir d ire occurred a

nd they had an opportunity to confer with their attorn e y s )
, abrogated in part on other grounds by U n i t e d States v. Lewis
, 492 F .3d 1 219 ( 11th Cir. 2007) ( e n banc).

The cases f

r o m other circuits holding that Rule 43 was violated when the defendant was ex c luded from a portion o f jury selection a r e disting u ishable. F or ex ample, in United States v

. Thomas
, 724 F .3d 632 (5th Cir. 2013), the court h eld that “ [ the defen d a n t ’ s] absence from the e x e rcise o f peremptory challeng es was in deviation from her rig hts both under the F ifth Amendment Due Process Clause and und er the ex press provi s i o ns of F ed. R. Crim. P. 43.” Id. at 643. B ut the court’s holding was premised on the fact that “[ the defendant] w as not present w hen trial counsel ex ercised peremptory challeng es or when t h e c o urt read the list of jurors who were not struck into the record .” Id

. ( e m phasis

a d d e d). Here, Rey e s w as present when e ach juror was

ex c u sed in open court and when the jur y w a s sworn in. I n United States v. Gibbs
, 182 F .3d 4 08 ( 6 t h Cir. 1999), the
court stated that “[ t] he absence of t h e defendants from the peremptory challeng e c onference may sometimes constitute reversible error.” Id. at 438. B ut 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
g rounds that the defendant’s absence violated the rule.

2. Harmless error analy

sis

Having determined that the district court v i o lated Rule 43(a)(2) when it conducted v o ir dire of J uror H outside o f Rey es’s presence, we must assess whether the error was harmless. W e conclude that the side bar voir dire of J uror H

was harmless because the evidence of Rey es’s gu i lt wasU N I T E D S T A T E S V

. R E Y E S 19

overwhelming

. See Rosales-Ro d r i g u ez , 289 F .3d at 1111 (observing t h at “the e vidence ag ainst the defendant was overwhelming ” in holding that a constitutional v iolation was harmless bey ond a reasonable dou b t )

. At trial, the
g ov e r nment introduced Rey es’s recorded confession, the testimony o f a b a nk e mploy ee who identified h im a s the culprit, and vide o footag e from the bank. B ecause the
outcome w ould remain unchang ed if Rey es had been present when the court questioned J u r or H at side bar, the v iolation o f Rule 43 w as harmless. Rosales-Rodriguez
, 289 F .3d at 1111.

C. Constitutional Right To Be Present

W e nex t consider whether Rey es’s constitutional rig ht to be present was violated when the district court r efuse d h is request to join his attorney s at the side bar conferences during jury se l ec tion. W e conclude that no constitutional violation occurred.

“[ A] defendant charg ed w ith a felony has a fundamental rig ht to b e present during v oir dire.” Sherwood
, 98 F .3d at 407; see also Campbell
, 18 F .3d at 671. B ut the Constitution is n ot implicated every time a d efendant is ex cluded from a trial stag e, f

or “[ a] lthough the rig ht of a defendant to be present at h i s trial is ‘ancient and well-established,’ it is not all en c ompassing or absolute.” V eatch
, 674 F .2d at 1225 (internal citation omitted).

I n S n yder v. Massachusetts
, 291 U.S. 97 (1934), the Supreme Court, in an opinion b y J ustice Cardoz o, noted that “in a prosecution for a f

elony the defendant has the privileg e under the F o urteenth Amendment to be present in his o wn pe rs on whenever his presence has a relation, reasonably

s u b stantial, to the fullness of his opportunity to de f e n dU N I T E D S T A T E S V

. R E Y E S 20

ag ainst the c harg e.” Id. at 105–06. With respect to voir dire, the Court noted that the “defense m ay b e made easier if the accused is permitted to be present a t the ex amination of jurors

. . . for it will be in hi s power, if present, to g ive advice o r sug g estion or even to supersede his lawy ers altog ethe r a nd conduct the trial himself.” Id. a t 106. B ut the Court went on to observe that “[ n ] o w h e r e in the decisions o f [ the Supreme Court] is there a d i c tum, and still less a ruling
, that the F ourteenth Amendment assures th e privileg e of presence when presence wo u l d be useless, or the benefit but a shadow .” Id. at 106–07 (emphasis a dded). The C o u rt later reemphasiz ed that the c onstitutional rig ht to be present is not absolute, h olding tha t “the presence of a defendant is a

c o n dition of due process to the extent that a fair and ju s t hearing would be thwarted by his absence, and to that extent only .” I d. at 107–08 (emphasis added). 3

The Court reaffirmed th i s h olding in Faretta v

. California
, 422 U .S. 806 (1975), where it observed that “[ i] t is now a ccepted . . . that an accused has a rig ht to be present at all stag es of the trial where his absence might frustrate the fairness of the proceedings .” Id. at 8 19 n.15 (e mphasis

3 In Lewis v

. Un ited Sta tes , 1 4 6 U.S. 3 70 (1 8 92 ), th e Co u rt stated th at

“ [a] lead in g p rin c i p l e th at p erv ad es th e en tire law o f crim in al p ro ced u re is th at, af ter in dictm en t f

o u n d
, n o th in g sh all b e d o n e i n th e ab sen ce o f th e p riso n er.” Id

. at 3 7 2

. B u t th e Co u rt set asid e th is p rin cip l e i n S n y der

w h en it ex p lain ed th at th e Co u

rt’ s p rev io u s statem en ts “ o n th e su b j ect of th e p resen ce of a d ef

en d an t [w ere] d ict[a], an d n o m o re.” S n y d e r , 2 9 1 U.S. at 1 1 7 n .2

. T h e S nyd e r C o u r t f

u rth er o b serv ed th at th e d iscu ssio n of t

h e rig h t t o b e p resen t in Lewis “ d eals w i t h th e ru le at

co m m o n law an d n o t w ith co n s titu tio n al restrain ts.” Id

. In Allen
, th e Co u rt ag ain ex p ressly rep u d iated Le w i s i n o b s erv in g th at “ [t]h e b ro ad d icta in [ Ho

p t v. Uta h , 1 10 U.S. 57 4 (1 8 8 4 )] an d [ Lewis ] th at a t rial can

n ev er co n tin

u e in th e d ef

en d an t’ s ab sen ce h av e b een ex p ressly rej ected .” Allen , 3 9 7 U.S. at 3 4 2

.U N I T E D S T A T E S V

. R E Y E S 21

added). And the Court applied this principle in Gagnon in holding that “[ t] he mere occurrence of an ex parte conversation betw ee n a trial judg e a n d a juror d oes not

c o n stitute a deprivation of any constitutional rig ht. T h e defense has no constitutional rig ht to be present at every interaction between a judg e and a juror.” Gagnon , 470 U.S. at 526 (internal quotation marks and citation omitted).

1. Voir dire of J uror H

Rey es’s ex clusion from the side bar conference w here the
court c onducted vo i r dire of J uror H w as not an instance where the defendant’s “absence mig ht frustrate the fairness o f the proceeding s.” Faretta
, 422 U

. S

. at 8 1 9 n.15. I t was instead an ex ample of an ex chang e where his presence would have been “but a shadow.” Snyder , 291 U.S. at 106–07.

A d efendant’s presence during voir dire is important because it allows him to observe the prospective jurors’

answers and demeanor so that he can as s i s t his attorney in constructing a

n impartial jury

. See Bustamante v

. Eyman
, 456 F .2d 269, 274 (9th Cir. 1972) (“The rig ht to b e present at trial stems in part from the fact that by his phy sical presence the defendant can hear and s e e t h e p roceeding s, can be seen by the jury

, a

nd can p ar t i c i p a te in the presentation of his rig hts.”); see also R olle
, 204 F

. 3d at 137 (ex plaining that the defendant mig ht “have knowledg e o f facts about h i m self o r the alleg ed crime

. . . which may become import a n t a s t he individual prejudices or inclinations o f t he jurors a re

re v e a l e d ” and that he “may also be a member of the community in which he will b e t r i ed and mig ht be sensitive
to p articular local prejudices his lawy er does not know about” (quotation marks and citation omitted)). B ut Rey es’s absence when the court questioned J uror H at side bar did notU N I T E D S T A T E S V

. R E Y E S 22

m e a n i ng fully affect his ability to assist his a ttorney s i n evaluating her as a p rospective juror. The ex chang e b etween the court and J uror H w as brief, and Rey es’s attorney could have offered his client a full account of the conversation bet ween the court a

nd J uror H g iven the b revity of the

ex c h a ng e and the court’s willing ness to permit them to confer thr o u ghout voir dire. See Gagnon
, 470 U.S. at 527 (“The
encounter b etween the judg e, the juror, a nd [ the defendant’s] lawy e r w a s a short interlude in a complex trial; the conference was not the sort of event which every d efendant had a rig ht per s onally to a ttend under the F ifth Amendment.”). Of c o u r se, “the presence of counsel is no subst itute for the p resence of the defendant h imself.” Bustamante
, 456 F .2d at 2 74. B ut the ease a n d r e l i a b ility with w hich an attorney can relay the detail s o f a s i de bar

ex c h a ng e to the defendant is one factor that affects whether the defendant’s a

bsence mig h t un dermine the fundamental fairness of the proceeding

. See G agnon , 470 U.S. at 526–27 (“[ T] he ex clusion of a defendant from a t rial proceeding should b e considered in lig ht of the w h o l e r ecord” (citing Snyder , 291 U.S. at 115)).

The defendant’s rig h t to be present is also an impo rtant

means to “safeg

uard the p ublic’s interest in a fair and orderly judicial sy stem.” Bustamante
, 456 F .2d a t 274–75. B ut Rey es’s ex clusion from a short conversation between the
court and a prospective juror that w as witnessed by counsel and transcribed does not threaten the integ rity of the judicial
sy stem. To the contrary , to hold that the Constitution ex tends
to the defendant the rig ht t o be present at every ex chang e between the c ourt and a prospective juror mig ht interfere with the trial c ourt’s ability to maintain a secure and orderly environment. S

ee R ushen v. Spain
, 464 U.S. 114, 119 (1983) (chastising the lower courts for “ig nor[ ing ] the[ ] day -to-dayU N I T E D S T A T E S V

. R E Y E S 23

realities o f courtroom life and u ndermin[ ing ] society ’s interest i n the administration of criminal justice” by strictly limiting unrecorded ex parte communications between trial courts and jurors).

Other courts have h eld that a defendant’s ex clusion from

a portion o f voir dire does n ot cast doubt on the fundamental fairness of the proceeding s. I n W ashington
, the district court questioned thirteen p r ospective jurors at side bar about their prior in v olvement with the criminal justice sy stem. W ashington
, 705 F

. 2d a t 4 9 6

. The court refused the defendant’s r equest to participate. Id. T wo of the prospective jurors questioned outside of the defendant’s p r esence were eventually seated on the jury

. Id. at 498. T h e D

. C

. Circuit, in a per c uriam opinion joined by then-J udg e Ruth B ader Ginsburg
, h eld, as we do here, that the ex clusion of the defendant from part o f voir dire violated Rule 43 but not the Constitution

. Id. at 497 n.5 ( “The constitutionally mandated minimum protection a defendant is entit l e d to under rule 43(a) is fundamental f

airness. This minimum of fairness was certainly met in this case

. . . . W e stress this o n ly to a mplify that our holding is based on rul e 43(a), not directly on the Six th A m en d m ent confrontation clause or the due process g uarantee o f the C o nstitution.” (internal citations o mitted)). Similarly
, in Bland v. Sirmons
, 459 F .3d 999 (10th Cir. 2006), “the trial c o u r t conducted a limited voir dire of thirty -two individual jurors in chambers” without the defendant present before conducting the rest of voir dire in o p e n c o u rt. I d. at 1020. The court held that the defendant’s absence f rom part of voir dire was “not enoug h t o establish a constitutional violat i o n” because “[ c] onsidering [ the d efendant’s] absence from individual voir dire in lig h t of the entire jury sel e ction
process, [ the defendant] h a d ample opportunity to ob serve jurors during voir d

ire a n d e x ercise peremptory c halleng e sU N I T E D S T A T E S V

. R E Y E S 24

according ly .” Id. at 1021; see also Kilmartin v. D o rmire
, 161 F .3 d 1125, 1127 (8th Cir. 1998) (holding that the defendant’s c onstitutional r ig ht to b e present was not v iolated when the trial court spoke with six prospective jurors outside of the defendant’s earshot about matters that the prospective jurors wished to discu s s p r i v a tely ). I n all three of these

cases— W ashington
, B land
, and Kilmartin —the trial court conducte d voir dire of multiple jurors outside o f the defendant’s presence without transg ressing the constitutional rig ht to be present. T hese authorities bolster our conclusion that the d istrict c ourt’s decision t o b r i e f ly question a sing le juro r o u t s ide of Rey es’s presence did not create a scenario where the defendant’s “absence mig ht frustrate the fairness o f the proceeding s.” Faretta , 422 U.S. at 819 n.15.

W e note that the Second Circuit reached a c o n t rary conclusion in Cohen v

. Senkowski
, 290 F .3d 485 (2d Cir. 2002). Th ere, the trial court held “pre-screening ” proceeding s where it questioned all of the prospective jurors outside o f the defendant’s presence abo ut their ex posure to media reports about the case. Id. a t 48 7

. T w o o f the jurors who stated that they were fa m i l i a r w ith the case were eventually seated on the ju r y

. I d

. The trial court conducted the remainder of voir dire in open court, t h o u gh on three occasions the cou r t ag ain questioned prospective jurors outside of the defendant’s presence about possible b ias based

on pretrial publicity a

nd the nature of the c harg es. Id. The Second Circuit c oncluded that the defendant’s r ig ht to be present w as violated, stating that “[ p] re-screening of a jury venire is not co m p a r a b le to the brief conference b etween judg e and juror in [ Gagnon ]
, n or a procedure a t w h ich a defendant’s presence would be ‘useless,’ as per [ Snyder ]

. ” I d

. at 489 (internal citations omitted). Cohen i s disting uis h ab l e from this case on several levels. There, theU N I T E D S T A T E S V

. R E Y E S 25

trial court questioned all of the p rospective jurors outside of the defendant’s prese n c e rather than just one prospective juror. And the C o h e n court did not indicate that the defendant’s attorney was permitted to pause the presum ably leng thy “pre-screening ” p r ocess with all of the prospective jurors to confer with his client about their answers.

To the ex tent that Cohen can be read as holding that the defendant’s absence from a portion of voir dire always causes

a v iolation of the c onstituti o nal r ig ht to be present, we respectfully disag ree. I n S n y d er , the Supreme Court specifically mentioned the d efendant’s rig ht “to be present at the ex amination 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). W e therefore follow the rule that the ex clusion o f the defendant from a portion of voir dire violates the Constitution only if “his absence mig ht f rustrate the fairness of the proceeding s.” Faretta
, 422 U.S. at 8 19 n.15; see also Bland
, 459 F

. 3d at 1020–21 ; W ashington
, 705 F .2d at 4 97 n.5. Apply ing this rule, w e conclude that a l t h oug h the district court’s decision to c onduct v o i r d i re of J uror H outside o f Rey es’s presence w as inconsistent w i t h Rule 43, it did not violate the narrower p rotections a fforded by the Constitution.

2. The seventeen other side bar ex chang es

The district court’s decision to ex cl u d e Rey es from the
seventeen other side bar ex chang es—where the attorney s arg ued that jurors should be ex cused f or cause, ex e r c i sed peremptory challeng es, and discussed whether to proceed in
t h e absence of some prospective jurors—was likewise consist e nt w ith the Constitution. These conferences onU N I T E D S T A T E S V

. R E Y E S 26

questio n s of law are prototy pical ex a mples of instances “when presence would be useless, or the b enefit but a shadow.” Snyder
, 291 U.S. at 106–07. Rey es would have merely observed the proceeding s while the attorney s made
arg uments a

bout which jurors should be ex c used for c a u se and ex erci s e d peremptory challeng es. As in Gagnon
, he “could have done nothing h ad [ he] been at the conference,

nor would [ he] have g ained any thing by attending .” Gagnon
, 470 U.S. at 527.

I n Fontenot
, we held, on plain erro r r eview, that the district court did not err in having the attorney s ex ercise their peremptory challeng es outside of the defendant’s presence

w h e r e, as here, the defendant had the opportunity to conf e r with h is lawy e r after v oir dire and before t h e c o nference. Fontenot
, 1 4 F .3d at 1370. F urthermore, R e y e s was a ble to observe the composition of the jury on a n ong o ing basis a

nd
correct any mistakes made by his lawy e r i n ex ercising his peremptory

challeng e s 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 r i gh t to be present during the juror c halleng es” conducted in his absence where h e “was represented by counsel at these sessions,

. . . g iven a n o pp o r tunity to consult with counsel before the sessions beg a

n, and

. . . the challeng es were later effectuated in open court”); Gayles , 1 F

. 3d at 738; Bascaro , 742 F

. 2d at 1349–50. This is not a c ase where the defendant was absent when jurors were ex cused or when the jury was impaneled. See Thomas
, 724 F

. 3d at 6 43 (“[ I ] f a defendant is not present during the reading of the list o f jurors not struck (the moment the strikes are g iven ‘formal e ffect’) then the absence is in derog ation of his constitutional rig ht to be present.”).U N I T E D S T A T E S V

. R E Y E S 27

The dis t r i c t c ourt’s decision to ex clude Rey es from the side bar conferences did n ot v iolate his constitutional rig ht to be present. B ecause no constitutional violation occurred, we need not address whether the a lleg ed error was harmless bey ond a reasonable doubt. 4

4 Rey es co n ten d s th at e x c l u din g a def en d an t f ro m a p o rtio n o f j u ry selec t i o n i s a stru ctu ral erro r th at i s n o t s u scep tib le to h arm less erro r

rev iew

. A lth o u g h w e n e e d n o t ad d ress th e issu e in th is case b ecau se n o

co n stitu tio n al v io latio n o ccu

rred
, w e n o t e th at w e h av e p rev i o u sly h eld th at a v io latio n o f th e d ef

en d an t’ s rig h t t o b e p resen t is su b j ect to h arm less

erro r rev iew

. S

ee Ca mp b ell v. Rice
, 40 8 F.3 d 1 1 6 6
, 1 1 72 (9 th Cir. 20 0 5) (en b an c) (“ T h e Su p r e m e C o u rt h as n ev er h eld th at th e ex clu sio n of a d ef en d an t f ro m a critical stag e o f h is crim i n al pro ceed in g s co n stit utes a stru ctu ral erro r. T o th e co n trary , i n [ Ru sh en , 4 6 4 U.S. at 1 1 7 ], th e Co u rt d eterm in ed th at t h e f

act th at th e d ef

en d an t w as d en ied t

h e rig h t to b e p resen t d u rin g an ex p a rte co m m u n icatio n b etw een th e j u d g e an d a j u ro r

w as a trial erro r th at w as su bj ect to h arm less erro r an aly sis.”); Bo rd a llo
, 8 5 7 F.2 d at 5 2 2– 2 3 (h o l d in g th at th e “ v io lati o n o f a d ef en d an t’ s du e p ro cess rig h t t o b e p r e s e n t at all stag es o f t rial is su bj ect

. . . to th e h arm less erro r ru le” in a case w h ere th e d ef

en d an t w as n o t

p resen t w

h en th e d istrict co u rt ex cu sed p ro s p ectiv e j u ro rs, so m e o f w h o m i t co n clu ded

w ere f rien d s o r su

p p o rters o f th e d ef

en dan t (in tern al q u o tatio n m ark s an d citatio n o m itted )).

Rey es relies o n U

n ited S ta tes v. Go nza lez-Lo p ez , 5 4 8 U.S. 1 4 0 (2 0 0 6), w h ere th e Co u rt h eld th at th e “ erro n eo u s d ep riv atio n o f th e rig h t to co u n sel o f ch o ice

. . . q u alif i es as ‘ s tru ctu ral erro r.’ ” Id

. at 1 5 0 (in tern al
q u o tatio n m ark s an d citatio n o m i tted ). B u t Go n za l ez-Lo p ez d o es n o t af f ect o u r cases h o ld in g th at th e erro n eo u s d ep riv atio n o f th e d ef en d an t’ s rig h t to b e p resen t is su

b j ect to h arm less erro r rev iew

. W e h av e co n tin u ed
to ap ply th ese p reced en ts af ter th e S u prem e Co u rt issu ed i ts o p in i o n in Go n za lez-Lo

p ez

. S ee Ma rks
, 5 3 0 F.3 d at 8 1 2 (“ If th e d en ial o f th e rig h t to b e p r e s e n t r ises to th e lev el o f a co n stitu tio n al v io latio n , th en ‘ th e b u rd en is o n th e p ro secu tio n t o p ro v e t h at th e erro r w as h arm l ess b ey o n d

a reaso n ab le do u

b t.’ ” (q u o tin g Ro sa les-Ro d rig uez , 2 8 9 F.3 d at 11 0 9)); Ho vey v. Ayers
, 4 58 F.3 d 8 92
, 9 03 (9 t h Cir. 2 0 0 6 ) (“ [A ]s w e recen tly h eld in Ca mp b ell v. Rice
, a v io latio n o f t h e r i g h t to b e p resen t is trial erro r,

su b j ect to h arm less erro r rev iew .”).U N I T E D S T A T E S V

. R E Y E S 28

I I I

.

F inally
, Rey e s contends that his sentence is substantively unreasonable. “The substantive reasonableness o f a sentence

. . . is reviewed for a

b use of d i scretion.” United States v

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

The d istrict court imposed a sentence o f 125 m o n t h s’ imprisonment, with thirty -six months to run conse c u t ive to the state sentence that Rey es wa s already serving for h aving pled g uilty to second-degree r o bbery

. T he sent ence was at the hig h end of the Guidelines rang e of 100–125 months. “I n determining substantive reasonableness, we are to consider the totality o f the c ircumstances.” United States v. Carty
, 520 F .3d 9 84, 993 ( 9th Cir. 2 0 0 8 ) (en b anc). “The overarching statutory charg e for a district court is to ‘ impose

a sentence sufficient, but not g r eater than necessary ’ to reflect the seriousness of the offense, promote respect for t h e l a w , and provide just punishment; to afford ade q u a t e deterrence;
to protect the public; and to p rovide the d efendant with needed educational or vocational tra i n i ng , medical care, o r

Oth er co u rts h av e lik ew ise h eld th at a v io l atio n o f t h e d ef en d an t’ s rig h t to b e p resen t i s n o t a stru ctu ral erro r. See, e.g

. , U

n i t e d S ta tes v. Rivera -Ro d

rig uez , 6 1 7 F.3 d 58 1
, 6 0 1

– 04 (1 st Cir. 2 0 1 0 ) (h o ld in g n o stru ctu ral erro r w

h ere th e d istrict co u rt q u est i o n e d f if teen p ro sp ectiv e j u ro rs ou tsid e o f th e p resen ce o f th e d ef en d an ts a n d t he i r atto rn ey s ); Un ited S ta tes v. Rid

dle
, 2 4 9 F.3 d 5 2 9
, 5 3 5 (6 th Cir. 2 00 1 ) (“ [T ]h e rig h t to b e p resen t at v o ir d ire i s n o t o n e o f th o se stru ctu ral rig h ts w h o se v io latio n

co n stitu tes p er s e erro r.”); Felicia n o , 2 2 3 F.3 d at 1 1 1 (“ [D]ef en dan ts h av e cited n o case—an d w e h av e f o u n d n o n e—in w

h ich an ap p ellate co u

rt h as f o u n d a stru ctu ral d ef

ect w h ere a d e fe n d an t w as p resen t t h ro u g h ou t b u t

u n ab le to h ear a circu m scrib ed p o rtio n of vo ir d ire
, an d w h o se c o u n s el

w as allo w ed to co n su lt w ith h im ab o u t th e l im ited q u estio n in g o u t sid e h is h earin g .”).U N I T E D S T A T E S V

. R E Y E S 29

other correctional treatment.” Id. a t 991 (quoting 1 8 U .S .C. § 3553(a)).

The d istrict court did not abuse its discretion in imposing the sentence in this case. At the sentencing hearing
, the court referenced Rey es’s ex tensive criminal history a nd te ndency
to commit crimes soon after being released from custody

. Rey es c o m m i t ted the attempted bank robbery at issue here less than a week after he was r elease d f r om California state prison, where he served part o f a six teen-month sentence. He is presently serving a state sentence for a r o b b e r y he committed two weeks after the attempted bank robbery

. On five previous occasions, Rey es was convicted of offenses that he committed w ithin a few months after being released from prison. W hile only one of his pre v ious offenses involved violence, Rey es’s criminal history i s leng thy and serious
enoug h to support the district co urt’s conclusion that a

s e n t e n ce a t the hig h e nd of the Guidelines r ang e was necessary to promote r espect for the l a w and to deter him from committing additional crimes. See United States v

. Ruiz-Apolonio
, 657 F .3d 907, 9 20 (9th Cir. 20 1 1 ); U nited States v. Ringgold
, 571 F .3d 948, 9 5 3 (9 t h Cir. 2009). The district court also noted that Rey es’s attempted bank robbery involved a threat of violence. Althoug h there w a s n o evidence that Rey es was actually armed, a threat o f violence used to enable a bank robbery could nevert heless place by standers at risk as security g uards and poli ce officers proceed on the assumption that t h e defendant is carry ing a weapon. Cf. United States v. B e ndtzen
, 542 F .3d 722, 724, 728–29 (9th Cir. 2008).

Rey es’s reli a n c e on U

nited States v. Amezcua-Vasquez
, 567 F .3d 1050 ( 9th Cir. 2 0 09), is unavailing

. There, we deemed a sentence substantively unreasonable because it wasU N I T E D S T A T E S V

. R E Y E S 30

based on a six teen-level enhancement for a violent felony that the d efendant had committed twenty

- five y ears e arlier, a n d there was no indicatio n t h at the defendant had “harmed o r attempted to harm another pe r son or the property of another for the past twenty y ears.” I d

. a t 1 0 5 6

. Here, by contrast, Rey es’s criminal history is both ex tensive and recent. See United States v. Valencia-Barragan
, 6 0 8 F .3d 1103, 1109 (9th Cir. 2010).

The district court did not abuse its d iscretion in surmising that a s e n t e nce at the hig h end of the Guidelines rang e was

nece s s ary to p rovide just punishment and protect the public when the circumstances of the o ffense are viewed in combination with Rey es’s criminal history

. “[ O] ur r eview o f the substantive reasonableness of a sentence is deferential a nd will provide relief o nly in rare cases.” U n ited States v

. Ressam
, 679 F .3d 1069, 1 088 ( 9th Cir. 2012) (en banc). This is not one of those “rare c ases” w her e t h e district court abus e d its discretion b y imposing a substantively unreasonable sentence.

I V.

W e conclude that the district court’s decision to conduct voir dire of J uror H o utside of Rey es’s pres e n c e v i olated F ederal Rule of Criminal Procedure 43. B ut t h e error was harmless because “there is no r easonable possibility that prejudice resulted from the absence.” M arks
, 530 F

. 3d at 813 (internal quotation marks and citation o mitted). W e h old that Rey es’s ex c lusion from the side b ar ex chang e s dur i ng jury selection did n ot violate his constitutional rig h t to be present because the conferences were n ot instances where t h e defendant’s “absence mig h t frustrate the fairness of the proceeding s.” Faretta
, 4 2 2 U.S. at 8 19 n.15. Rather, anyU N I T E D S T A T E S V

. R E Y E S 31

benefit of Rey es’s presence a t side bar would have been “ but

a shadow.” Snyder
, 291 U.S. at 1 0 6 –07. F inally
, we conclude that the district court did not impose a substantively unreasonable sentence. W e therefore AF F IRM the di strict court’s judg ment.