Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding.
Before SNEED, MICHEL and THOMAS, Circuit Judges.
Honorable Paul R. Michel, United States Circuit Judge for the Federal Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Richard A. Fowles ("appellant") appeals from his conviction in the United States District Court for the Northern District of California, the Honorable Charles A. Legge, Presiding, on six counts of aiding and abetting co-defendant Connie C. Armstrong ("co-defendant") in a scheme to defraud and obtain money by false pretenses under 18 U.S.C. §§ 1343, 2314 (1998). Appellant argues that the district court committed reversible error by permitting the jury to reread a portion of the trial transcript during jury deliberations. He further contends that it was reversible error for the district court to communicate ex parte with the jury. Finally, appellant argues that he was not present at trial on January 6, 1997, and that it was reversible error for the district court to proceed in his absence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Appellant first argues that the district court committed reversible error when it provided a portion of the trial transcript to the jury during its deliberations. We disagree. Once deliberations begin, the district court must not allow particular testimony to be unduly emphasized. See United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985). To determine whether the jury unduly emphasized testimony by rereading it during deliberation, this Court looks to "the quantum of other evidence against the defendant, the importance of the [reread] testimony in relation to other evidence, and the manner in which the [testimony] was [presented to the jury]." United States v. Sacco, 869 F.2d 499, 502 (9th Cir.1989).
In this case, there was no undue emphasis. First, there was an overwhelming amount of evidence against appellant. In proving its case, the government called some thirty witnesses and offered more than a hundred exhibits. Numerous witnesses testified specifically as to appellant's fraudulent intent, while others provided circumstantial evidence of the general scheme. Second, although the testimony furnished to the jury was important, it did not determine the outcome of the case. For the most part, it merely corroborated the testimony of other witnesses. Third, the manner in which the district court ultimately provided the transcript to the jury ensured that there was no undue emphasis. Although the district court initially failed to notify the parties or give precautionary instructions to the jury, it corrected its own mistake and sent the jury back to reach a final verdict. Before sending the jury back to re-deliberate, the district court twice issued precautionary instructions taken verbatim from United States v. Lujan, 936 F.2d 406, 411-12 (9th Cir.1991), and permitted counsel to review the transcript for inaccuracies. In sum, there was no undue emphasis on the testimony furnished to the jury during deliberations.
Appellant next contends that the district court violated his right to be present at trial. The Constitution, a long line of Supreme Court cases and Federal Rule of Criminal Procedure 43 guarantee a criminal defendant the right to be present "at every stage of the trial." See, e.g., Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975). Appellant contends that the district court violated his constitutional and Rule 43 right to be present on two occasions; first, when it proceeded in his absence during trial on January 6, 1997, and second, when it engaged in ex parte communications with the jury during deliberations. We reject both contentions.
First, there is no support for appellant's assertion that he was absent from the courtroom on January 6, 1997. On that day, the judge postponed the start of the proceedings because appellant and a witness were delayed apparently by a public transportation problem. The judge stated that the court was ready to proceed only after appellant's counsel assured the court that appellant was ready. Although the court did not note expressly appellant's presence, appellant's counsel did not state that appellant was absent. Nor did counsel object to the proceedings at any time during trial or in a post-trial motion. See generally United States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486 (1985) (holding that Rule 43 rights were waived where defendant did not object at time of proceedings or make any post-trial motions, "although post-trial hearings may often resolve this sort of claim"). Nor does appellant refute the government's assertion that trial counsel for both sides recall appellant's presence. For these reasons, we conclude that appellant was present on January 6, 1997.
Second, although the district court erred when it communicated ex parte with the jury, that error was harmless. Violations of Rule 43 are subject to a harmless error analysis under Federal Rule of Criminal Procedure 52(a). See Rogers v. United States, 422 U .S. 35, 39-40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975) (citation omitted). In order to show harmless error, the government must demonstrate, see United States v. Throckmorton, 87 F.3d 1069, 1072-73 (9th Cir.1996), "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." See United States v. Frazin, 780 F.2d 1461, 1469-70 (9th Cir.1986) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). In this case, the government demonstrated that the ex parte communications did not affect the verdict. Neither the content of the communications nor the manner in which they were made resulted in any prejudice to appellant. To repeat, the evidence against him was overwhelming.
For the foregoing reasons, we affirm.