Consequently, Wiley must prove actual prejudice to sustain her claim. See United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995) (holding that, where a restraint is not "inherently or presumptively prejudicial," defendant "must demonstrate actual prejudice to establish a constitutional violation" (citation omitted)).

We review for plain error unpreserved claims of juror bias and other issues raised for the first time on appeal. Fed. R. Crim. P. 52(b); United States v. Olano, 62 F.3d 1180, 1187-88, 1192 (9th Cir. 1995). Ineffective assistance of counsel claims are reviewed de novo.

We next turn to the court's questioning of Kenny. Had the district court decided to question Kenny in chambers without the defendant or spectators, we would conclude that there were no constitutional violations. United States v. Olano, 62 F.3d 1180, 1190-91 (9th Cir. 1995) (holding a district court's one-on-one meeting with a juror to determine impartiality did not violate the Sixth Amendment right of confrontation and the Fifth Amendment right of due process); accord Parker v. United States, 404 F.2d 1193, 1197 (9th Cir. 1968) (district court followed the proper procedure in individually interviewing each juror, with only the court reporter present, as to whether the jurors had heard, read, or seen the recently publicized guilty plea); Polizzi v. United States, 550 F.2d 1133, 1137 (9th Cir. 1976) (same in alternative holding). See also United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) ("The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.

Further, the error prejudiced Defendants' substantial rights because it appears to have affected the outcome of the proceedings, which relied heavily on Defendants' concerted activities within Montana. SeeUnited States v. Olano, 62 F.3d 1180, 1188 (9th Cir.1995) (stating standard).

In order for a defendant to prevail on a claim of this nature, a court must find that the defendant was indeed physically restrained in the presence of the jury, that the shackling was seen by the jury, and that the physical restraint was not justified by state interests. Then, in order for the unjustified shackling to rise to the level of a constitutional error, the defendant must make a showing that he suffered prejudice as a result.United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995); United States v. Halliburton, 870 F.2d 557, 561-62 (9th Cir. 1989). In a state habeas case, if a constitutional error is found, the federal court next must ask whether the error had a "substantial and injurious effect" on the jury's verdict.

Variance occurs when the evidence adduced at trial proves facts materially different from those alleged in the indictment. United States v. Olano, 62 F.3d 1180, 1194 (9th Cir.1995), cert. denied, 117 S.Ct. 303 (1996). Hronek argues that the prosecution's proof at trial may prove an unrelated conspiracy between Johnson and Hronek but does not prove a conspiracy to manufacture between the named coconspirators: Hronek, Donald E. Allison, Sr. and Donald E. Allison, Jr. Hronek characterizes his challenge as concerning whether the government established multiple, distinct conspiracies as opposed to the single conspiracy charged in the indictment.

However, where a jury is only briefly exposed to a defendant's shackles, this does not give rise to a constitutional violation. United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995) (a juror's brief exposure to a defendant in shackles requires showing of actual prejudice). Similarly, no constitutional violation lies where a defendant is seen entering the courtroom wearing shackles after a recess, or when a defendant is seen in shackles outside of the courtroom.

"A trial court has considerable discretion in determining whether to hold an investigative hearing on allegations of jury misconduct or bias and in defining its nature and extent." United States v. Olano, 62 F.3d 1180, 1192 (9th Cir. 1995).

On this record, we conclude there was no forfeiture of the defendant's right to be present. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993), opinion on remand, 62 F.3d 1180 (9th Cir. 1995) (distinguishing between waiver and forfeiture and defining forfeiture as the failure to make the timely assertion of a right). [¶ 7] Trial was held, and the jury found Baer guilty of driving under the influence of alcohol.

¶15 On facts similar to those here, the United States Supreme Court has held that due process does not require a defendant's presence at in-chambers discussions between a judge and an impaneled juror. See Gagnon, 470 U.S. at 526 (holding "[w]e think it clear that respondents' rights under the Fifth Amendment Due Process Clause were not violated by the in camera discussion with the juror"); accord United States v. Olano, 62 F.3d 1180, 1190-91 (9th Cir. 1995) (rejecting due process challenge where judge had questioned juror about her impartiality outside the presence of defendant and counsel), cert. denied, 519 U.S. 931 (1996). No Washington court has addressed this situation, and we do not read the federal authority as suggesting that a defendant's presence at such a conference could never be a condition of due process.