United States v. Gagnon et al.
470 U.S. 522 (1985)
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Rule of Law:
A criminal defendant's failure to invoke their right to be present under Federal Rule of Criminal Procedure 43 at an in-chambers conference between the judge and a juror, which the defendant knows is taking place, constitutes a valid waiver of that right.
Facts:
- During a federal trial for a cocaine distribution conspiracy, one of the respondents, Gagnon, was observed sketching portraits of the jurors.
- A bailiff informed the trial judge that a juror, Garold Graham, had expressed concern about being sketched by Gagnon.
- Gagnon’s attorney admitted that his client had been sketching the jurors, and the judge ordered the practice to cease.
- In open court, with all four respondents and their counsel present, the judge announced her intention to speak with juror Graham in her chambers to determine if any prejudice existed.
- No respondent or their counsel objected to the judge’s plan or made a request to be present at the in-chambers conference.
- The judge met in chambers with juror Graham and Gagnon's counsel.
- During the meeting, the judge explained the situation and reassured the juror, who then affirmed his willingness to remain impartial.
- Gagnon's counsel asked the juror questions and stated he was satisfied with the juror's impartiality.
Procedural Posture:
- The four respondents were tried together and convicted by a jury in a Federal District Court.
- The respondents filed a consolidated appeal to the United States Court of Appeals for the Ninth Circuit, arguing their right to be present was violated.
- A divided panel of the Court of Appeals reversed the convictions, holding that the in-chambers discussion violated the respondents' rights under Rule 43 and the Due Process Clause, and that they had not waived those rights.
- The United States government, as the petitioner, sought and was granted a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does a criminal defendant's failure to object or assert a right to be present at an in-chambers conference between the trial judge and a juror, of which the defendant is aware, constitute a valid waiver of that right under Federal Rule of Criminal Procedure 43?
Opinions:
Majority - Per Curiam
Yes. A criminal defendant's failure to invoke their right to be present at a conference they know is taking place between the judge and a juror constitutes a valid waiver of that right under Federal Rule of Criminal Procedure 43. First, the Due Process Clause does not grant a defendant the right to be present at every interaction between a judge and juror; the right only attaches when the defendant's presence is substantially related to their opportunity to defend against the charge, which was not the case here. Second, assuming Rule 43 applied, the respondents waived their right to be present. They were aware of the impending conference but failed to object or request to attend. A defendant who knows of such a conference must assert their right at that time and cannot raise the issue for the first time on appeal. An express, on-the-record waiver is not required; the knowing failure to assert the right is sufficient to constitute a voluntary absence and thus a waiver under Rule 43.
Dissenting - Brennan, J.
The dissent does not directly answer the issue but argues the Court should not have decided the case in this manner. The Court's per curiam opinion resolves an important constitutional question regarding ex parte judge-juror contact that it had explicitly reserved just one term prior in Rushen v. Spain. Deciding this highly fact-specific case without full briefing or oral argument is improper and provides no guiding standard for lower courts. The petition for certiorari should have been denied, or if the merits were to be addressed, it should have been done only after full consideration.
Analysis:
This decision clarifies that the right to be present under Rule 43 is not self-enforcing and can be waived through inaction. It places an affirmative duty on defendants and their counsel to object or assert their right to attend in-chambers conferences or sidebars they are aware of. This holding prevents defendants from remaining silent about a potential procedural error during trial and later using it as an appellate parachute if the verdict is unfavorable. The ruling promotes judicial efficiency and finality by requiring contemporaneous objections, thereby allowing trial courts to correct potential errors immediately.
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