               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 03-1405

                             UNITED STATES,

                                Appellee,

                                     v.

                          NICKOYAN WALLACE,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Ronald R. Lagueux, Senior U.S. District Judge]


                                  Before

                     Torruella, Circuit Judge,
                 Campbell, Senior Circuit Judge,
                    and Selya, Circuit Judge.



     Nickoyan Wallace on brief pro se.
     Margaret E. Curran, United States Attorney, and Donald C.
Lockhart, Assistant U.S. Attorney on brief for appellee.



                          December 11, 2003
          Per   Curiam.    Nickoyan       Wallace    has   appealed     the

district court's denial of his pro se motion, filed during the

pendency of his direct criminal appeal, that was purported to

be filed pursuant to Fed. R. Civ. P. 60(b) and sought to vacate

his criminal conviction.      Neither the district court nor the

government remarked on the obvious proposition that Rule 60(b)

of the Federal Rules of Civil Procedure is an inappropriate

procedural vehicle to vacate a criminal conviction.                  In any

event, the motion was correctly denied.

          Wallace    contends    that    he    was   not   present     at   a

discussion that occurred during trial among the trial court,

government counsel and his own defense counsel.            Even assuming

that Wallace was not present, Wallace points to the inference

in the record of this discussion, but then proffers nothing

(for example,   an   affidavit    of     his   counsel)    to   rebut   the

government's    explanation      (also     record-based)        that    the

discussion concerned the taking of a recess in order to get

Willie Preston, an incarcerated government witness, into the

courtroom and Preston's restraints removed without Preston's

restraints being seen by the jury.         We are thus left with this

unrebutted conclusion regarding the substance of the prior

discussion.

          "[A] defendant is guaranteed the right to be present

at any stage of the criminal proceeding that is critical to its


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outcome if his presence would contribute to the fairness of the

procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). He

has   a   right   to   be   present    "whenever    his     presence     has   a

relation,    reasonably      substantial,     to    the    fulness      of   his

opportunity to defend against the charge" and "to the extent

that a fair and just hearing would be thwarted by his absence."

Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108 (1934).

Wallace's attendance at the discussion concerning the use of a

recess to bring Preston into the courtroom had no reasonably

substantial relation to the fullness of his opportunity to

defend against the criminal charges of robbery of a gun shop

and related firearms offenses and a fair and just hearing on

those charges was not thwarted by his absence.                   See United

States v. Oles, 994 F.2d 1519, 1525 (10th Cir. 1993) (defendant

failed to establish that his presence at an administrative

conference, at which potential retained counsel informed court

that he would not be representing defendant, would contribute

to the fairness of the overall proceeding and defendant's

absence from this conference did not impinge on defendant's

opportunity to defend against criminal charge); United States

v.    Shukitis,    877      F.2d    1322,   1329-30       (7th   Cir.     1989)

(defendant's      presence     at     conferences     concerning        alleged

violations of court's witness sequestration order would not

have aided the court in its determination of any violation and


                                      -3-
his absence did not affect his ability to defend against the

criminal drug charges).

          Wallace's remaining claims of error in the admission

of Preston's testimony are meritless. His claim of a violation

of the mandate of Massiah v. United States, 377 U.S. 201

(1964), was adjudicated adversely to him in his direct criminal

appeal and may not be relitigated.         See United States v.

Wallace, 71 Fed. Appx. 868, 2003 WL 21982022 (1st Cir. Aug. 21,

2003) (unpublished).     And, his claim of error in the admission

of Preston's testimony as a result of judicial bias is patently

frivolous.

             Affirmed.




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