A panel of this court affirmed, concluding that Rice had a constitutional right to be present when the jury rendered his sentence; that he had not waived this right; and that the error was structural and, therefore, not subject to harmless-error analysis. See Rice v. Wood, 44 F.3d 1396, 1400-02 (9th Cir. 1995) ( Rice III). We ordered the case reheard en banc to examine the issues concerning Rice's absence.

In this circuit we have identified two critical phases of a criminal proceeding where the defendant's absence constitutes structural error. In Hays v. Arave, 977 F.2d 475 (9th Cir. 1992), we held that in absentia sentencing is a structural error that requires automatic reversal of the defendant's conviction, and in Rice v. Wood, 44 F.3d 1396 (9th Cir. 1995), we concluded that a defendant's absence from the return of a death verdict is a structural defect in the criminal proceedings that is not subject to harmless error analysis. Both Rice and Hays are distinguishable from the present case.

A claim has been "fairly presented" if the petitioner has described the operative facts and legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). The operative facts must be presented in the appropriate context to satisfy the exhaustion requirement.

A claim has been "fairly presented" if the petitioner has described the operative facts and legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). The operative facts must be presented in the appropriate context to satisfy the exhaustion requirement.

A claim has been "fairly presented" if the petitioner has described the operative facts and legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). The operative facts must be presented in the appropriate context to satisfy the exhaustion requirement.

DISCUSSION An agreement among the jurors as to a particular charge or defendant becomes final only after it has been returned in open court. Rice v. Wood, 44 F.3d 1396, 1402 (9th Cir. 1995) (citing United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975)); Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 513 (1982). Prior to that time the verdict is preliminary and subject to reconsideration by the jurors.

Failure to substitute counsel is a structural defect not subject to harmless error analysis. Rice v. Wood, 44 F.3d 1396, 1401 (9th Cir. 1995), vacated in part on reh'g en banc, 77 F.3d 1138 (9th Cir. 1996); see also Adelzo-Gonzalez, 268 F.3d at 781 (reversing denials of motions to substitute counsel and vacating conviction and sentence); United States v. Nguyen, 262 F.3d 998, 1005 (9th Cir. 2001) (reversing judgment of conviction after finding, inter alia, denial of motion to substitute counsel violated defendant's Sixth Amendment right). --------

Delaying retrial in such cases, while attorneys fight over a sentence that may no longer exist, risks the perpetuation of a monumental injustice, should retrial ultimately result in an acquittal. Id. at 1414 n. 7; see also Rice v. Wood, 44 F.3d 1396, 1402 n. 10 (9th Cir. 1995). The same policy considerations are involved in this case.

see also Robbins v. Smith, 152 F.3d 1062, 1069 (9th Cir. 1997), rev'd on other grounds, 528 U.S. 259 (2000) (“If trial error is found to have occurred and to require vacation of the conviction, the appellate errors will become immaterial.”); Rice v. Wood, 44 F.3d 1396, 1402 n.10 (9th Cir. 1995), vacated in part on other grounds, 77 F.3d 1138 (9th Cir. 1996) (en banc),

Even if Delapinia prevailed on one or more of his remaining claims, he could obtain no greater relief than that to which he already is entitled on the portions of ground 2(b) and 4(b) upon which the Court grants relief in vacating the judgment. See Id. at 1412-13 (determining that “[a]lthough the district court did not address the sentencing issues, these claims became moot and unnecessary to reach by virtue of the order vacating the conviction and requiring a new trial”); Rice v. Wood, 44 F.3d 1396, 1402 n.10 (9th Cir. 1995), vacated in part on other grounds, 77 F.3d 1138 (9th Cir. 1996) (en banc), cert. denied, 519 U.S. 873 (1996) (“[O]ur affirmance of the district court's granting of the writ on one sentencing issue effectively renders unnecessary any further consideration by the district court of the remaining penalty phase issues.”).