1

11

- 2369

Morris v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in th e City of New York, on the 19 th day of June , two thousand thirteen.

PRESENT:

G UIDO C ALABRESI

, J OSÉ A. C ABRANES

, B ARRINGTON D. P

ARKER

, Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
L ESLIE M ORRIS

,

Petitioner

- Appellant

,

- v.

- No. 11

- 2369

U NITED S TATES OF A MERICA

,

Respondent

- Appellee

.

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FOR PETITIONER

- APPELL ANT : Leslie Morris, pro se

, Pine Knot , KY

.

FOR RESPONDENT

- APPELLEE: Alina P. Reynolds, Robert M. Spector

, Assistant United States Attorneys

, for David B.

Fein , United States Attorney, United States Attorney’s Office for the District of

Connecticut

, Bridg eport

, CT

.2

Appeal from a May 12 , 2011 order of the Unite d States District Court for the D istrict of

Connecticut (

Peter C. Dorsey

, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the M ay 12 , 2011 order of the District Cour t be AFFIRMED

.

Petitioner

- a ppellant Leslie Morris, proceeding pro se , appeals from an order of the District

Court denying his 28 U.S.C. § 2255 motion. Morris argues that at his original trial the District C ourt

erred (1) by allowing the jur ors to take home cop ies of the j ury charg e for one night

, and (2) by
responding to the jury note seeking permission do so in the absence of Morris’s counsel

. We
assume the parties’ familiarity with the underlying facts, the procedural history of t he case, and the

issues on appeal. 1

Pursuant to § 2255 , a federal prisoner may collaterally attack his sentence on “the ground
that the sentence was imposed in violation of the Constitution or laws of the United States.” 2 8

U.S.C. § 2255(a). In conside ring a denial of a motion for relief under § 2255, w e review a district

court’s conclusions of law de novo and its factual findings for clear error

. Rivera v. United States

, --- F.3d

---- , No. 11

- 5155

- pr, 2013 WL 2278408 , at * 2 (2d Cir. May 24, 2013 ).

Thi s appeal concerns the District Court’s response to a note submitted by the jury on the
evening of the first day of deliberations. In the note, the j urors asked whether they could take
copies of the jury charge, which at 110 pages was particularly long and complex, home with them to
read. Upon receiving the note, the District Court attempted to find trial counsel, but the attorneys
had already left for the evening. Given the nature of the request, the District Court decided to permit the jurors to take ho m e copies of the charge (for one night only), but first instructed them

not to consider outside law or to discuss the case with anyone. The next day, upon learning that the
jurors took home copies of the charge, defense counsel objected. Morris now renew s that objection

on appeal.

A. Permitting the Jury to Take Home the Charge

First , Morris argues that the District Court erred in permitting the jurors to bring copies of
the jury charge home with them for one night because , in Morris’s view, this decis ion encouraged
independent, rather than group, deliberation. We recently addressed an analogous situation where a

1 We note tha t the government argues for the first time on appeal that Morris’s claim is procedurally defaulted because he did not raise it on direct appeal. “ However, because the government failed to raise its procedural default defense in the district court, it is p recluded from doing so now.” United States v. Canady , 126 F.3d 352, 360 (2d Cir. 1994)

. Accordingly, we a ddress the merits of Morris’s claim.3

district court allowed “ the members of the jury

— after the beginning of jury deliberations and after

receiving various cautionary instructions

— to take the indictment home to read on their own time. ”

United States v. Esso , 684 F.3d 347, 349 (2d Cir. 2012)

. We saw “no harm in such private

‘deliberation s ,’ which may in fact enable jurors to participate more thoughtfully in the collective

process of reaching a verdict.” Id. at 351. We have no reason to reach a contrary conclusion in this
case, where the District Court permitted the jurors to read a particularly lengthy and complicated
charge at home, after instructing them not to consider outside facts or law or to discuss the case

with anyone.

Accordingly, we conclude that Morris’s claim that the court should not have allowed the
jurors to take the jury charge home with them because it may have encouraged “private
deliberations” or invited jur ors to conduct independent investigation is without merit.

B

. Answering the Note Without Defendant or His Counsel Present

Second , Morris claim s that his constitutional rights were violated when t he District Court
responded to the jury note without the p resence of defense counsel. We have explained that a defendant has a right, rooted in the Sixth Amendment Confrontation C lause and Fifth Amendment

Due Pr ocess Clause

, to be present at e very stage of a trial. See United States v. Collins , 665 F.3d 454,

45 9 (2d Cir. 2012) ; see also Fed. R. Crim. P. 43(a)(2) (requiring the defendant’s presence at “every trial

stage”)

. 2 We have also observed that the right to be present “extend[s] to require that messages
from a jury should be disclosed to counsel and that c ounsel should be afforded an opportunity to be
heard before the trial judge responds .” Collins , 665 F.3d at 459 (quotation marks omitted). Indeed,

we have set forth the following guidelines for the “proper practice” in handling a jury note: “(1) the

jury inquiry should be in writing; (2) the note should be marked as the court’s exhibit and read into
the record with counsel and defendant present; (3) counsel should have an opportunity to suggest a
response, and the judge should inform counsel of the respon se to be given; and (4) on the recall of
the jury, the trial judge should read the note into the record

, allowing an opportunity to the jury to
correct the inquiry or to elaborate upon it

. ” United States v. Mejia , 356 F.3d 470, 475 (2d Cir. 2004).

The parties do not dispute that the District Court failed to read the note into record with

defense counsel present and to afford defense counsel an opportunity to suggest a response.

2 In relevant part, Rule 43 provides:

(a) When Required. Unless this rule, Rule 5, or Rule 10 provides other wise, the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the plea;

(2) every trial stage, including jury impanelment and the return of the verdict; and

(3) sentencing.

Fed. R. Crim. P. 43(a).4

However, “[n] ot every violation of a defendant’ s right to be pr esent will result in reversal[;] [s] uch a
violation only requires reversal if it is not harmless

. ” Collins , 665 F.3d at 460.

We have noted “[t] here is some conflicting authority regarding the standard of review
applicable to the harmless error analysis ” in this c ontext. Id . Indeed, in some cases we have “ stated

that a violation of a defendant ’ s right to be present is not harmless if his ‘ absence created any

reas onable possibility of prejudice, ’” id. (quoting United States v. Fontanez , 878 F.2d 33, 37 (2d Cir.

19 89)), while in others “ we have analyzed this type of case under a more deferential standard:

whether the court can say with ‘fair assurance . . . that the judgment was not subs tantially swayed by

the error.’” Collins , 665 F.3d at 461 (quoting Krische v. S mith , 662 F.2d 177, 179 (2d Cir. 198 1 )).

Nonetheless, w e need not resolve this issue here because under either formulation there is no doubt

that the error was harmless

.

Indeed, it is clear from a review of the record that defense counsel’s absence did not create any reasonable possibility of prejudice . The jury’s note did not involve a substantive question of
law; it merely asked an administrative question, i.e. , whether the jurors could use their time at home
to read through the lengthy charge. See U nited States v. Ballistrea , 101 F.3d 827, 837 (2d Cir. 1996) (no

reversible error where the communication with the jury “ largely concerned administrative matters ”)

. Unlike cases in which we have found prejudice resulting from the absence of defense counse l , t he
wording of the District Court’s response in this situation was not significant, cf. United States v.

Ronder , 639 F.2d 931, 934 (2d Cir. 1981), and the note came at the beginning of the jury’s six

- day

deliberation, cf. Collins , 665 F.3d at 463

- 64 , an d in no way guided the jury’s verdict

. In short, we are
confident that, under any standard of review, the District Court’s error in responding to the jury’s

note in the absence of defense counsel was, in these circumstances, harmless.

CONCLUSION

We have reviewed the record and the parties’ arguments on appeal. For the reasons set out

above, we AFFIRM the May 1 2 , 2011 order of the District Court.

FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court