United States Court of Appeals

For the Eighth Circuit

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No. 14-1355

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Nathan Wayne Smith

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Council Bluffs

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 Submitted: September 11, 2014

 Filed: November 12, 2014

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Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

A jury convicted Nathan Wayne Smith of bank robbery in violation of 18

U.S.C. § 2113(a). He appeals, claiming the district court committed constitutional

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error by allowing the jury to view a replay of video exhibits outside the presence of

The Honorable James E. Gritzner, Chief Judge, United States District Court

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for the Southern District of Iowa. 
the defendant, and without notifying defense counsel. Having jurisdiction under 28

U.S.C. § 1291, this court affirms.

I.

At about 9:30 am one June morning, a man entered a bank in Hamburg, Iowa. 

He wore a white visor, lightly tinted sunglasses, a gray or white baggy t-shirt, and

dark baggy pants with black-and-white tennis shoes. He pushed a plastic bag at the

teller and told her to “fill it up.” Cameras recorded the robbery. A witness saw an

early-90s Cadillac speeding away from the area of the bank. It had a dark green

exterior and a light-colored vinyl top. The bank’s outside ATM camera twice

recorded a vehicle with this description.

Smith lived in Lexington, Missouri, a three-hour drive from Hamburg. He

owned a dark green 1995 Cadillac with a light-colored vinyl top. It had an ignition

interlock device, which, three-and-a-half hours after the robbery, was serviced in

Missouri. The device showed that the car ran continuously from 6:30 am until 11:17

am, then again for shorter periods before 1:00 pm that day—the only time the car ran

this long between February and July that year. Smith paid $175 cash for the

service—$150.30 more than required by his lease.

Minutes after the service, an officer stopped Smith in the Cadillac for a

registration violation. The officer’s camera showed Smithwearing a light gray t-shirt. 

On the seat next to him were lightly tinted gold-rimmed sunglasses. Smith told the

officer he was currently unemployed. The day after the robbery, Smith paid $1,475

cash for a car, without test-driving it. Seven days after the robbery, two bank tellers,

viewing a six-person photo lineup, independently identified Smith as the robber. 

Days later, police searched his home, seizing a pair of black-and-white tennis shoes

and a light colored T-shirt, like the robber’s. They also found his Cadillac under a car

cover with the license plates removed. 

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At issue are four video exhibits entered without objection and shown to the jury

during trial. As the jury prepared to deliberate, the court told counsel: “All of the

exhibits will go back. The videos, if the jury wishes to see them, we’ll play them for

them in the courtroom. Please make sure someone other than one of the attorneys is

here to play those for us if we need that done.” 

During deliberation, the jury requested to view the four videos. The equipment

to play them was in the courtroom. The jury came back to the courtroom. The judge

and the court reporter were there. A staff member of the U.S. Attorney’s office—who

had played the videos at trial—played them for the jury. 

THE COURT: Take your seats.

JUROR [#1]: Are we able to look at the smaller monitor?

THE COURT: Take your seats.

We are on the record, the Court having received a question from the

jury, the question being, “We would like to see the three bank videos

(not the ATM) and the Amer video from Buckner. We would [sic] a

smaller screen versusthe large monitor,” and it’s signed by the foreman,

[Juror #3].

The Court can certainly provide you with a chance to see those videos,

and we’ll do that in just a moment. I can’t alter the way you were shown

the videos during the trial. I will allow you, if you wish, to step closer

to the monitor, because obviously some of you are closer than others. 

So if you wish to come out of the jury box and be closer to the monitor

while they’re being played, you’re welcome to do that, but I will not be

able to give you a different monitor to look at. 

JUROR [#2]: Can we look off of that monitor that the— 

THE COURT: That monitor will be there when you’re standing over

there. 

JUROR [#2]: Okay. 

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THE COURT: So if you want to come closer to the monitors, you may. 

JUROR [#3]: I would say the people that have the biggest questions, get

toward the front. 

THE COURT: Don’t tell me that. 

Okay. Alright. Deb, would you just play them in order. 

And then if you wish to see them again, tell me. 

JUROR [#2]: And if we ask to stop, can she?

THE COURT: She will. 

JUROR [#2]: Okay.

(Exhibit 2 played in open court.)

JUROR [#1]: Why don’t we stop and back it up to about halfway in

between. 

THE COURT: Kelli, we don’t need to record their discussion. 

(Discussion off the record.)

THE COURT: Folks, avoid much discussion. Just tell us what you

want to see. 

Are you ready for the next video?

(Exhibit No. 3 played in open court.)

(Discussion off the record.)

THE COURT: Next one, please. 

(Government exhibit 4 played in open court.)

THE COURT: And then you wanted the Officer Amer stop in Buckner.

(Government exhibit 12 played in open court.)

THE COURT: Anybody need to see anything again?

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A JUROR: No. 

JURORS IN UNISON: Thank you. 

THE COURT: Thank you, folks. 

Twenty-one minutes after reviewing the videos, the jury reached its verdict. 

II.

Smith argues the district court should have notified him and his counsel about

the jury’s request to replay the video evidence, giving him an opportunity to be

present and heard on the issue. He also contends that replaying the video exhibit to

the jury is a critical trial stage triggering a right to be present under the Fifth and

Sixth Amendments of the United States Constitution and Federal Rule of Criminal

Procedure 43(a)(2). 

The government argues that, even if the district court erred by replaying the

videos without notifying Smith and his counsel, any error is reviewed only for plain

error. Although the district court briefly told counsel how it would address the jury’s

request to play the videos, the court did not indicate whether the defendant (or

counsel) would be notified or given an opportunity to be heard. Since Smith and his

counsel had no chance to object to the replay, plain error is not the standard of

review. Fed. R. Crim. P. 51(b) (“If a party does not have an opportunity to object

to a ruling or order, the absence of an objection does not later prejudice that party.”).

“We review whether a trial court conducted a proceeding in violation of

defendants’ right to be present during every stage of trial under an abuse of discretion

standard. If a proceeding was conducted in violation of this right, it is subject to

harmless error analysis.” United States v. Barth, 424 F.3d 752, 762 (8th Cir. 2005)

(internal citations omitted). See Chapman v. California, 386 U.S. 18, 24 (1967)

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(“[B]efore a federal constitutional error can be held harmless, the court must be able

to declare a belief that it was harmless beyond a reasonable doubt.”).

“The Fifth and Sixth Amendments protect a criminal defendant’s right to be

present at all stages of the trial, and a trial court must provide the defense attorney

with notice and a meaningful opportunity to object before responding to a question

asked by the jury once deliberations begin.” Stewart v. Nix, 972 F.2d 967, 971 (8th

Cir. 1992) (internal citations omitted). “Communication between judge and jury in

the absence of and without notice to the defendant creates a presumption of prejudice.

Such presumption may be overcome, however, by a clear indication of a lack of

prejudice.” Id. (internal citations omitted). See also United States v. Olano, 507 U.S.

725, 739 (1993) (“There may be cases where an intrusion should be presumed

prejudicial . . . but a presumption of prejudice as opposed to a specific analysis does

not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and

thereby its verdict?”). 

In Shelton v. Purkett, 563 F.3d 404 (8th Cir. 2009), this court addressed a trial

court’s grant of a “deliberating jury’s request to view exhibits . . . without informing

counsel that the court was communicating with the jury.” Id. at 407-08. Although

this court assumed that the communication was constitutional error, “[w]e

questione[d] whether the act of handing over a previously admitted exhibit qualifies

as the sort of ‘presumptively prejudicial communication’ Stewart addressed, as it

seems more ministerial than substantive.” Id. at 408. See generally United States v.

Muhlenbruch, 634 F.3d 987, 1001-02 (8th Cir. 2011) (“It is within the sound

discretion of the trial court to determine whether to allow a jury to review properly

admitted testimony or recordings during deliberations.”). 

Even if the district court abused its discretion by replaying the videos without

notifying the defendant and his counsel, the error was harmless beyond a reasonable

doubt. The district court was present during the replay, and the transcript shows no

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prejudicial dialogue. Although what was said off the record is unknown, the court

instructed the jury to avoid discussion and to “just tell us what you want to see.” See

Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298, 1305 (8th Cir. 1996) (“It is

certainly reasonable to believe, absent evidence to the contrary, that the jury adhered

to the judge’s instructions.”). The jury was in the courtroom for a total of 11 minutes

to view all four videos—which together last 7 minutes 45 seconds (and it appears one

video was backed up and played halfway through again). Although a non-attorney

IT specialist from the U.S. Attorney’s office played the videos, the court instructed

her what to play and when to play it.

Overwhelming evidence showed Smith committed the robbery. Two tellers

independently identified him asthe robber in a photo lineup a week after the robbery.

He owned a unique Cadillac identical to the one used in the robbery (which soon had

its license plates removed). The drive times on the ignition interlock device meshed

with the robbery timeline. Despite claiming to be unemployed, he made large cash

transactions within 24 hours after the robbery. Smith’s clothing resembled the bank

robber’s.

Finally, Smith was present and did not object during trial when the court

admitted the videos into evidence and they were played to the jury. Defense counsel

played one video during his closing argument. This court finds beyond a reasonable

doubt that the video replay outside of Smith’s (and his counsel’s) presence was

harmless.

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Neither this court nor the Supreme Court has directly addressed whether the

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replay of video evidence to a deliberating jury is a critical stage in trial. The circuits

are split on this issue. See United States v. Monserrate-Valentin, 729 F.3d 31, 58

(1st Cir. 2013) (discussing cases). Since replaying the videos without notifying the

defendant or his counsel was harmless beyond a reasonable doubt, this court need not

address whether the replay is a critical trial stage. See Rushen v. Spain, 464 U.S.

114, 117-19 (1983) (holding the right to personal presence at all stages of trial is

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* * * * * * *

The judgment is affirmed.

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reviewed for harmless error); Rogers v. United States, 422 U.S. 35, 40 (1975) (“[A]

violation of Rule 43 may in some cases be harmless error.”).

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