                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10537

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00523-KJD-LRL-1

  v.
                                                 MEMORANDUM *
DAVID KLUCKA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                    Argued and Submitted November 30, 2011
                            San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

       David Klucka appeals his misdemeanor convictions. We affirm.

       The Sixth Amendment allows the defendant to make significant tactical

decisions regarding his own case instead of being subjected against his will to the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for Northern District of Ohio, sitting by designation.
strategy of counsel. Faretta v. California, 422 U.S. 806 (1975); McKaskle v.

Wiggins, 465 U.S. 168, 178 (1984). A defendant must have the opportunity to

“control the organization and content of his own defense, to make motions, to

argue points of law, to participate in voir dire, to question witnesses, and to address

the court and the jury at appropriate points in the trial.” Id. at 174. In this case,

Klucka maintained control over his defense and participated fully in the trial. He

argued points of law, made statements to the court and the jury, examined

witnesses, and so forth.

      Klucka’s complaint is limited to one sidebar conference from which, he

contends, he was excluded. But that conference concerned a subject as to which

standby counsel had previously spoken, at Klucka’s request. The comments added

by Klucka on that previous occasion did not take a position different from that

standby counsel had taken, so there was no reason for the district court to infer that

Klucka had rescinded permission for standby counsel to speak. See id. at 182 (“a

pro se defendant’s solicitation of or acquiescence in certain types of participation

by counsel substantially undermines later protestations that counsel interfered

unacceptably”). At the time of the sidebar conference, Klucka did not indicate a

desire to participate and did not object to the discussion proceeding without him.

Under the circumstances, Klucka’s failure to participate in the sidebar conference


                                            2
appears more the result of his failure to request an opportunity to participate than

any exclusion by the district court.

      There was, moreover, no prejudice suffered by Klucka from his failure to

participate in that one sidebar conference. Klucka does not complain about the

position taken by standby counsel at that conference and does not contend that the

result of the conference would have been any different had he been allowed to

participate directly. Instead, he suggests only that his role may have diminished in

the eyes of the jury and that the jury might not have perceived him as being in

control of his own defense. In light of Klucka’s personal participation in virtually

every other aspect of the trial, the claim that the jury would have perceived his role

as limited is unpersuasive.

      AFFIRMED.




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