                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2003

USA v. Toliver
Precedential or Non-Precedential: Precedential

Docket No. 01-4469




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                                   PRECEDENTIAL

                                               Filed June 4, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 01-4469


                UNITED STATES OF AMERICA
                                  v.
                    JEREMIAH D. TOLIVER,
                                              Appellant

       Appeal from the United States District Court
          for the Western District of Pennsylvania
          (D.C. Criminal Action No. 01-cr-00008E)
      District Judge: Honorable Maurice B. Cohill, Jr.

         Submitted Under Third Circuit LAR 34.1(a)
                    November 21, 2002
         Before: BARRY and AMBRO, Circuit Judges,
                   DOWD,* District Judge

                  (Opinion filed: June 4, 2003)




* Honorable David D. Dowd, Jr., Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
                                   2


                          Renee Pietropaolo, Esq.
                          Karen S. Gerlach, Esq.
                          W. Penn Hackney, Esq.
                          Appellate Attorney
                          Federal Public Defender
                          1450 Liberty Center
                          1001 Liberty Avenue
                          Pittsburgh, PA 15222
                            Attorneys for Appellant
                          Christian A. Trabold, Esq.
                          Assistant U.S. Attorney
                          100 State Street, Suite 302
                          Erie, PA 16507
                            Attorney for Appellee


                    OPINION OF THE COURT

AMBRO, Circuit Judge.
   Jeremiah D. Toliver was convicted by a jury in the
Western District of Pennsylvania of violating 18 U.S.C.
§ 922(g)(1) (possession of a firearm by a convicted felon).
During jury deliberations, the District Court answered a
jury question without first notifying either the defendant or
defense counsel. Toliver argues on appeal that this violated
his Fifth and Sixth Amendment rights to be present at
every stage of trial, as well as his Sixth Amendment right to
counsel.1 While the District Court’s manner of handling the
jury’s inquiry was incorrect, it nonetheless was harmless.
Thus we affirm.2

1. Toliver also claims that 18 U.S.C. § 922(g)(1) is an unconstitutional
exercise of Congress’s Commerce Clause powers. He acknowledges,
however, that this challenge is foreclosed by our decision in United
States v. Singletary, 268 F.3d 196 (3d Cir. 2001), and raises the issue
only to preserve the claim for review in the event of a subsequent change
in the law.
2. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C.
§ 1291.
                                    3


                   I.   FACTUAL BACKGROUND
  On April 3, 2000, the Erie Police Department received a
911 call from the home of Ethel Easter, stating an
unwanted guest — Toliver — would not leave. Toliver had
previously lived with Easter, but the two had separated.
Toliver was present on this particular evening at Easter’s
invitation to have dinner, but after they had a dispute
about another boyfriend of Easter’s, she demanded that
Toliver leave. He refused, and Easter called Toliver’s
mother, Anita Grey, with whom he lived, to come and get
him. Toliver’s mother arrived, but he protested that he
would not leave until he retrieved his gun, which he
believed to be in Easter’s bedroom. Easter told him she
would not return the gun because he was already on
probation. After at least two hours of arguing, Easter and
Grey could not persuade Toliver to depart, and Easter’s 18-
year-old nephew, Jason, called the police.
   Jason met the police at the door, and led them upstairs
toward Easter’s bedroom. While on the stairs, the two
officers and Jason heard a male voice say that he wanted
his gun back, and would not leave the house without it.
The officers entered the bedroom, where Toliver, Grey,
Easter, and Justin Barnett (Easter’s 15-year-old nephew)
were present.3 Easter told the officers that the gun was in
the room inside her golf bag. The officers retrieved the
weapon, a shotgun with a modified barrel and obliterated
serial number.
  The defense’s theory at trial was that the gun belonged to
Easter, a police dispatcher who feared she would be fired if
charged with a crime. The defense called at least four of
Easter’s coworkers on the Erie police force to undermine
her credibility, and each testified that they believed her to
be an untruthful person.
  The jury recessed at 12:05 p.m. on August 15, 2001. At

3. There was conflicting testimony at trial as to whether Justin also was
in the bedroom at this time. Officers Kensill and Letkiewicz testified that
they did not see any males in the bedroom other than Toliver. However,
Easter, Jason, and Justin each testified that Justin was in the bedroom
when the officers entered.
                             4


3:35 p.m., the District Court reconvened in chambers, with
defense counsel participating by telephone, to discuss a
response to a question submitted by the jury. Before doing
so, the judge informed both sides that this actually was the
second question the jury had asked, and that he had
answered the first without notifying counsel. The following
exchange occurred:
      THE COURT: This is Judge Cohill. And we got a
    question here, and I just think — I know the answer,
    but I just wanted — we had another one, too, that I
    didn’t — about fifteen minutes before the second one
    came in — I didn’t need to consult with the lawyers on
    that.
      Does that look okay to you?
      MR. TRABOLD: Perfect.
      THE COURT: This was question No. 1. I have
    Marshall Piccinini and Chris Trabold here, and I have
    got the Court Reporter. Anyway, question No. 1 was:
      Your Honor
        One question keeps coming up repeatedly —
      whether the male voice in the bedroom was heard to
      say
      Quote: “Give me the gun” or
      Quote: “Give me the gun back”
        Can we check the testimony of both:
      Corporal Kensill
      Officer Letkiewicz
        regarding their statement as to what they stated
      that they heard[.]
      And I had our Court Reporter do this transcript and
    I have sent this excerpt from the transcript up.
      Q: And what is it specifically, if anything, that you
      hear said about a gun as you go up the stairs?
      [Corporal Kensill]: I heard a male state that he
      wanted his gun back.
                                   5


        [Officer Letkiewicz]: . . . And on the stairway, we
        heard a male voice saying I want my gun, give me my
        gun back. And the female exchanges back, I’m not
        giving you your gun back. And he said, I want my
        gun back. And after this took place a few times, we
        continued to approach upstairs.
     That’s what I sent up to the jury. Any problem with
     that?
       MR. PATTON: Um, I would have preferred that they
     not have anything sent to them. They are supposed to
     rely on their collective memories.
       THE COURT: When they are asking for a specific
     quote, I think they are entitled to it. I mean, this is —
     both the quotes that they are quoting are incorrect as
     well.
       I mean, you know, if you object to that, why, okay,
     but I am going to overrule the objection.
       MR. PATTON: I would have objected to them being
     provided any specific testimony, but — I mean, I
     understand — if you consider that to be an objection,
     I understand you’re overruling it and you sent it up to
     them.
       THE COURT: Right.
       MR. PATTON: Okay.4
After the jury had retired for the evening at 4:55 p.m.,
defense counsel again objected, stating that he would have
opposed any testimony being provided to the jury, and if
any transcripts were sent out, defense counsel would have
asked that the officers’ entire testimony be submitted.
Defense counsel did not, however, request that a
supplemental cautionary instruction be given, and the
District Court again overruled the objection.

4. Following this colloquy, the District Court and counsel for both sides
agreed on an answer to the jury’s second note, which asked whether the
failure to prove that Toliver was aware of the length of the shotgun
barrel, an element of the offenses charged in the remaining counts,
negated the possibility of conviction on those counts.
                                     6


   The jury resumed deliberations the next morning at 9:00
a.m., and at 10:10 a.m. again requested excerpts from the
trial transcripts. The District Court agreed with counsel for
both sides that it was physically impossible to provide the
sought-after material, and instructed the jury to rely on its
collective memory.5 Defense counsel did note, however, that
the jury may question this denial after the District Court
previously had complied with its first request. At 11:25 a.m.
the jury reached its verdict, convicting Toliver on the charge
of being a felon in possession of a firearm, and acquitting
him on the charges of possession of an unregistered firearm
and possession of a firearm with an obliterated serial
number. This appeal followed.

5. The jury’s second request for testimony (and third note overall) stated:
    The jury is requesting to see three parts of the testimony:
    1.   From Officer Letkiewicz —
           Testimony regarding who answered the door and what was
           said when they entered — regarding who was upstairs in the
           bedroom.
    2.   From Jason Easter —
           Testimony regarding what he said to the police regarding who
           was upstairs when they (police) entered the house.
    3.   From Ethel Easter —
           Testimony after she defined the cost of the gun — we would
           like to see the testimony.
The District Court responded as follows:
      Members of the Jury, you have requested a number of excerpts
    from the trial transcripts. It is simply impossible to supply these to
    you.
      You may recall that after you were sworn as jurors, I instructed
    you as follows:
           Some people think that the jury will have available to it a copy
         of the transcript — that is, what the court reporter records
         during the trial. That is not so. You are expected to use your
         own memories to recall what was said in the testimony.
     As I instructed you, you will have to rely on your collective
    memory.
                                    7


             II.   PRINCIPLES OF LAW INVOLVED
   Toliver alleges that the District Court’s failure to disclose
to counsel the jury’s note before responding violated his
Fifth Amendment right to due process, Sixth Amendment
rights to counsel and to be present at every stage of his
trial, and Rule 43(a) of the Federal Rules of Criminal
Procedure. The Government acknowledges that the District
Court may have “compromised” Toliver’s constitutional and
statutory rights (and we agree), but it asserts that “the
court’s error was harmless.” Appellee’s Br. at 25. Toliver
counters that any error precludes harmlessness, as it is per
se reversible. Our initial task, therefore, is to determine
whether harmless error analysis applies to these
circumstances. Because this involves the interpretation of
the Constitution and the Federal Rules of Criminal
Procedure, our review is plenary. United States v. Bertoli, 40
F.3d 1384, 1397 (3d Cir. 1994).
  A.   Does Harmless Error Analysis Apply to Toliver’s
       Alleged Denial of his Constitutional Right to Presence
       During his Criminal Proceeding?
   A defendant’s constitutional right to be present at every
stage of his or her criminal proceeding is grounded in the
Confrontation Clause of the Sixth Amendment and the Due
Process Clause of the Fifth Amendment. United States v.
Gagnon, 470 U.S. 522, 526 (1985). The right is also
mandated by Fed. R. Crim. P. 43(a), which, at the time of
Toliver’s trial, provided that “[t]he defendant shall be
present at the arraignment, at the time of the plea, at every
stage of the trial including the impaneling of the jury and
the return of the verdict, and at the imposition of sentence,
except as otherwise provided by this rule.”6 The Supreme
Court has stated that “[c]ases interpreting [this] Rule make
it clear, if our decisions prior to the promulgation of the
Rule left any doubt, that [a] jury’s message should [be]
answered in open court and that petitioner’s counsel

6. Toliver was convicted on August 16, 2001. Effective December 1,
2002, Rule 43(a) requires that “the defendant must be present at: (1) the
initial appearance, the initial arraignment, and the plea; (2) every trial
stage, including jury impanelment and the return of the verdict; and (3)
sentencing.”
                                    8


should [be] given an opportunity to be heard before the trial
judge respond[s].” Rogers v. United States, 422 U.S. 35, 39
(1975). Yet the Rogers Court also stated that “a violation of
Rule 43 may in some circumstances be harmless error,”
subject to Fed. R. Crim. P. 52(a).7
  We encountered a situation similar to that of Toliver in
United States v. Neal, 320 F.2d 533, 536 (3d Cir. 1963),
where we declined to analyze for harmlessness a Rule 43
violation involving the trial judge’s answer to a jury’s
question in the defendant’s absence. The jury in that case
sent a note asking if it may recommend mercy for the
defendant. The judge responded that the jury could make
the recommendation, but the court might be constrained to
disregard it. The judge did not tell the jury that the offense
carried a mandatory minimum sentence. At the time of this
exchange, the defendant was not present, and the record
was unclear whether defense counsel was present. We
noted that, although it was not necessary to reach the
Government’s argument that the error was harmless, that
asserted defense was without merit.
     This contention ignores the fact that this jury was
     deadlocked for a two-day period on the issue of the
     guilt or innocence of the defendant, and the fact-of-life
     that one or more of the jurymen might have been
     persuaded to ‘go along’ with the guilty verdict in the
     mistaken belief that the ‘leniency’ recommendation
     would result in nothing more than a suspended
     sentence or a few months imprisonment.
Id. at 536.
  Other circuit courts have more directly (and more
recently) addressed whether a violation of a defendant’s
constitutional and statutory rights to be present in all trial
phases is properly subject to harmless error analysis, with
many concluding that it is. See, e.g., United States v.
Rosales-Rodriguez, 289 F.3d 1106, 1111 (9th Cir. 2002);
United States v. Sylvester, 143 F.3d 923, 928-29 (5th Cir.

7. Id. at 40. Prior to its revision on December 1, 2002, Rule 52(a)
provided that “[a]ny error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded.”
                               9


1998); United States v. Coffman, 94 F.3d 330, 335-36 (7th
Cir. 1996); United States v. Gomez, 67 F.3d 1515, 1528
(10th Cir. 1995); United States v. Harris, 9 F.3d 493, 499
(6th Cir. 1993).
   But to say that harmless error analysis applies when a
trial judge answers a jury’s note without the defendant or
his counsel being present — and we follow the lead of other
circuit courts in concluding that it does — does not
complete our inquiry, as we still must determine the proper
test for harmless error. For example, errors that violate a
defendant’s constitutional rights require the Government to
prove harmlessness “beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 24 (1967). A more lenient
standard, applied to errors affecting nonconstitutional trial
rights, inquires whether the error “had substantial and
injurious effect or influence in determining the jury’s
verdict.” Kotteakos v. United States, 328 U.S. 750, 776
(1946). Despite their general agreement that a trial judge’s
error in replying to a note from the jury in the absence of
the defendant or defense counsel does not require reversal
if it was harmless, circuit courts have not uniformly
decided which standard to apply. See Gonzalez-Gonzalez v.
United States, 2002 WL 31416029, at *2 n.2 (1st Cir. Oct.
29, 2002) (reiterating that “[w]e have yet to decide whether
the appropriate test for harmlessness in this context is that
set forth” in Chapman or Kotteakos, and declining to do so
in that decision); Krische v. Smith, 662 F.2d 177, 179 (2d
Cir. 1981) (noting that “[t]he several decisions in this circuit
reviewing the conduct of a trial judge in sending messages
to a deliberating jury without notice to defendant or his
counsel uniformly ha[ve] been decided without any
significant distinction between the two standards,” but
more recently the Second Circuit “has found reversible
error by applying only the Kotteakos standard”); Sylvester,
143 F.3d at 929 (not indicating the specific standard
applied by the Fifth Circuit, but finding that error in that
case was harmless because the appellants “ha[d] not shown
prejudice or coercion” resulting from the judge’s response
to the jury’s note); Harris, 9 F.3d at 499 (stating that errors
involving a defendant’s right to presence under Rule 43(a)
“must be considered with Rule 52(a) . . . providing that
harmless error is to be disregarded,” and in the Sixth
                              10


Circuit “the standard asks whether there is ‘any reasonable
possibility of prejudice’ ”) (internal citation omitted);
Coffman, 94 F.3d at 336 (noting that in the Seventh Circuit
a violation of Rule 43(a) “does not entitle the defendant to
a new trial if it is unlikely to have affected the jury’s
verdict”).
  Our precedent discussing in other contexts the
deprivation of a defendant’s right to be present at every
stage of the criminal proceeding also provides guidance. In
United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980),
we applied harmless error analysis where the defendants
were excluded from a portion of jury voir dire, implicating
their Rule 43 right to be present at the impaneling of the
jury. After citing the Supreme Court’s decision in Rogers,
422 U.S. at 40, for the proposition that “[a] violation of Rule
43 in some circumstances may be harmless error,” we
stated that “[i]f there is no reasonable possibility of
prejudice from the error, it is deemed harmless.” 637 F.2d
at 138, 139. Because the defendants were absent from only
a small part of the voir dire questioning, we concluded that
the error was indeed harmless. Id. at 141.
   Most recently, in United States v. Faulks, 201 F.3d 208
(2000), we held that a Rule 43 violation involving the
sentencing of a defendant by written judgment, instead of
orally and in his presence, required automatic vacatur and
resentencing. Writing for the Court, Judge Becker stated
that “[o]ne of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in
the courtroom at every stage of his trial.” Id. at 211
(quoting Illinois v. Allen, 397 U.S. 337, 338 (1970)). Thus,
Rule 43’s requirement that a defendant be present at
sentencing “is a fundamental procedural guarantee that
places the defendant before the judge at a culminating
moment of the criminal justice process.” Id. Most important
for our purposes, the Faulks Court noted that although our
Circuit had applied harmless error analysis in the past (and
cited Alessandrello as an example), it would not do so in
that case. Id. at 212. The Government had not argued that
any error was harmless. Moreover, “[e]ven if we were to
employ harmless error analysis, resentencing remains
appropriate.” Id. at 213.
                                 11


       The Rule 43 error in this case implicates constitutional
       concerns, see United States v. Bertoli, 40 F.3d 1384,
       1397 (3d Cir. 1994) (“The due process clause of the
       Fifth Amendment grants criminal defendants the ‘right
       to be present at all stages of the trial where his
       absence might frustrate the fairness of the proceedings
       . . . .’ ” (quoting Faretta v. California, 422 U.S. 806, 819
       n.15        (1975))),  making      the    establishment    of
       harmlessness more difficult. Given that there are still
       significant discretionary elements in the sentencing
       decision of the District Court, we cannot be sure that
       “there is no reasonable possibility,” Alessandrello, 637
       F.2d at 139, that the District Judge’s failure to impose
       Faulks’s sentence in his presence had no effect on the
       duration of the sentence imposed.
Id.
   From this passage, as well as the principles expressed in
our other right to presence cases, we draw the following
conclusions. First, harmless error analysis remains
generally applicable to Rule 43 violations. Second, while the
denial of a defendant’s right to be present at every stage of
trial violates his statutory rights under Rule 43, it also
implicates the constitutional protections on which the Rule
is founded. Thus, we will review for harmless error the
alleged deprivation of Toliver’s Fifth Amendment due
process and Sixth Amendment presence rights — as
reflected in Rule 43 — under the Chapman standard
reserved for constitutional errors; i.e., the Government
must prove beyond a reasonable doubt that the defendant
was uninjured by the error. Phrased somewhat differently,
as we stated in Alessandrello and reiterated in Faulks,
there must be “no reasonable possibility” of prejudice for an
error to be deemed harmless. Id. (quoting Alessandrello,
637 F.2d at 139).
  B.     Does Harmless Error Analysis Apply to Toliver’s
         Alleged Deprivation of his Sixth Amendment Right to
         Counsel?
  We next consider whether harmless error analysis may
be applied to the alleged deprivation of Toliver’s Sixth
Amendment right to counsel. “The presumption that
                              12


counsel’s assistance is essential requires us to conclude
that a trial is unfair if the accused is denied counsel at a
critical stage of his trial.” United States v. Cronic, 466 U.S.
648, 659 (1984). “Under such circumstances, ‘[n]o specific
showing of prejudice [is] required,’ because [without
counsel] ‘the adversary process itself [is] presumptively
unreliable.’ ” Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)
(quoting Cronic, 466 U.S. at 659). In other words, if counsel
is denied at a critical stage of trial, it is prejudice per se,
mandating automatic reversal.
   Toliver argues that the trial judge’s action in this case
deprived him of his Sixth Amendment right to counsel at a
critical stage of the proceeding, in violation of Cronic. In
support of his argument, Toliver relies on decisions of other
federal circuits involving the absence of counsel during the
court’s delivery of supplemental jury instructions. For
example, in Curtis v. Duval, 124 F.3d 1 (1st Cir. 1997), the
defendant was charged with second-degree murder. The
trial judge, acting sua sponte, delivered to the jury a
supplemental instruction on the lesser included offense of
manslaughter without defense counsel present. The First
Circuit, reviewing the appeal of a habeas claim, agreed with
the petitioner that “recalling the jury for supplementary
instructions after deliberations are underway is a critical
stage of a criminal trial,” and that “giving a sua sponte jury
instruction without consulting, and in the absence of, the
defendant’s attorney . . . denies the defendant the
assistance of counsel at that critical stage.” Id. at 4-5. The
Curtis Court further stated that, if the Supreme Court’s
decision in Cronic had retroactive application to the facts of
that case (it did not), a structural error of this type would
have required automatic reversal. Id. at 5-7. Similarly, in
French v. Jones, 282 F.3d 893, 898 (6th Cir.), vacated, 535
U.S. 1109 (2002), the Sixth Circuit likewise stated that a
supplemental jury instruction is a critical stage of a
criminal proceeding. Accordingly, harmless error analysis
did not apply in that case to the trial judge’s delivery, in the
absence of defense counsel, of a supplemental instruction
to a deadlocked jury. Id. at 900-01.
  We are unpersuaded by Toliver’s attempt to bring his
claim under Cronic. The trial judge’s response to the jury in
                                   13


this case was not akin to the supplemental jury
instructions in Curtis and French. Clarifying the substantive
elements of the charged offense (Curtis) or instructing a
deadlocked jury (French) affirmatively guides jurors as to
how they should fulfill their decisionmaking function. But
submitting verbatim specifically excerpted record testimony
that the jury itself had requested does not similarly
“instruct” the jury.
   Moreover, the cases Toliver cites are only marginally
instructive. The Sixth Circuit’s decision in French v. Jones
recently was vacated and remanded for further
consideration in light of Bell v. Cone, 535 U.S. 685 (2002).8
Moreover, the First Circuit recently recognized, albeit in an
unpublished decision, that “[d]octrinally speaking . . .
prejudice per se is hen’s-teeth rare,” and that its opinion in
Curtis did not broaden the limited circumstances in which
Cronic may be invoked. Gonzalez-Gonzalez v. United States,
2002 WL 31416029, at *2 (1st Cir. Oct. 29, 2002). We note
further that while there exist factually analogous cases
brought under the Sixth Amendment right to be present at
every stage of trial (discussed above), almost none are
styled as Sixth Amendment right to counsel claims. For
example, in United States v. Rosales-Rodriguez, 289 F.3d
1106, 1110 (9th Cir. 2002), a case cited by Toliver in
arguing a violation of his right to counsel, the Ninth Circuit
“found that the delivery of a supplementary jury instruction
constitutes a ‘critical stage’ of a trial for which the
defendant’s presence (or that of his counsel) is
constitutionally required . . . .” But the Rosales-Rodriguez
Court did not discuss, much less apply, Cronic, and instead
affirmed the defendant’s conviction because the errors were
harmless beyond a reasonable doubt. Id. at 1111.

8. Jones v. French, 535 U.S. 1109 (2002). In Bell the Supreme Court
held, inter alia, that a habeas petitioner’s claim for relief based on his
counsel’s waiver of closing argument during capital sentencing should
have been analyzed under the ineffective assistance of counsel principles
in Strickland v. Washington, 466 U.S. 668 (1984), and not the rule in
Cronic that defendants need not establish prejudice if their right to
counsel is denied during a critical stage of the criminal proceeding. 535
U.S. at 693-98.
                             14


   In fact, we are aware of only one case, decided by the
Seventh Circuit, that addressed whether harmless error
analysis applies to asserted violations of a defendant’s right
to counsel in these circumstances. In United States v.
Widgery, 778 F.2d 325 (7th Cir. 1985), during jury
deliberations the trial judge received two notes from the
foreman. The first stated that another juror was
intoxicated, and the second inquired about what it should
do in the event of a hypothetical deadlock. As to the first
note, the judge instructed the bailiff to watch the accused
juror closely. As to the second, the judge told the bailiff to
tell the foreman to “keep on trying.” Id. at 327. Defense
counsel was not informed of either note until after the trial
had concluded. The Seventh Circuit recognized that Fed. R.
Crim. P. 43(a) provided a defendant the right to be present
at every stage of trial, including contemporaneous access to
jury notes, which should be examined and answered in
open court. Id. (citing Rogers, 422 U.S. at 35; Shields v.
United States, 273 U.S. 583 (1927)). But the Widgery Court
further stated:
    Sometimes it is so difficult to tell whether the violation
    of a rule has injured the defendant, and so likely that
    the violation did, that the violation cannot be harmless
    error. Some deprivations of the right to counsel are in
    this category. Geders v. United States, 425 U.S. 80
    (1976). The right to see a note from the jurors and
    comment on the response is not. Rushen v. Spain, 464
    U.S. 114 (1983).
Id. at 329. Although Widgery was decided one year after
Cronic, the Seventh Circuit did not address whether a trial
judge’s response to a note from the jury constituted a
critical stage of the criminal proceedings. The Court did
explain, however, that “[a] judge’s failure to show jurors’
notes to counsel and allow them to comment before
responding violates Fed. R. Crim. P. 43(a), not the
[C]onstitution.” Id. It described as “circular” the argument
that this is a denial of the right to counsel:
    [T]here is a right to counsel at the reading and
    answering of the note only because Rule 43 requires
    the reading and answering to be done in an adversarial
    fashion, and if the court neglects to read the note to
                             15


    them, there is no proceeding at which counsel could
    appear.
Id. at 330.
   We agree with the Seventh Circuit that harmless error
analysis applies to Toliver’s claim that the trial judge’s
failure to consult with defense counsel before responding to
a jury note violated his right to counsel. We do not agree,
however, that Toliver asserts an infringement of only his
statutory rights. As we discussed in the context of Toliver’s
right to presence claim, the protections codified in Rule 43
are grounded in the language of the Fifth and Sixth
Amendments. For this same reason, we review the alleged
deprivation of Toliver’s Sixth Amendment right to counsel
— as reflected in Rule 43 — under the Chapman standard
for constitutional errors. The Government therefore must
prove harmlessness beyond a reasonable doubt, i.e., there
must be no reasonable possibility that the District Court’s
error prejudiced the outcome of Toliver’s trial.

  III.   APPLICATION OF PRINCIPLES OF LAW TO THIS
                         CASE
  Applying these principles of law to Toliver’s case, we must
determine, beyond a reasonable doubt, if he was harmed.
As a prelude, we note that the propriety of providing
excerpted transcripts of witness testimony is an issue we
confronted in United States v. Bertoli, 40 F.3d 1384 (3d Cir.
1994). There the jury on several occasions during its
deliberations requested transcripts of what ultimately
would be the entire testimony of twelve witnesses. We noted
that we previously had held that a trial court has broad
discretion to accede to a jury’s request to have witness
testimony read back to them, but that we had not
addressed the similar practice of complying with a jury’s
request for written transcripts. The defendant argued that
submitting written transcripts posed different dangers than
those present when testimony is read to the jurors a second
time, but our Court concluded that “we do not believe that
the distinctions between reading testimony to the jury and
providing the jury with copies of written testimony are
sufficient so that we should apply different considerations
                             16


when reviewing determinations by the court to supply
them.” Id. at 1400. Accordingly, we joined other courts that
had considered the issue and held that a trial judge’s
decision to supply transcripts is reviewed for an abuse of
discretion. Id. (citing cases).
  This case, of course, presents a slightly different issue —
not simply the propriety of the trial judge’s granting the
jury’s request for a transcript of specific testimony, but the
propriety of doing so without first consulting, and in the
absence of, the defendant or defense counsel. Bertoli is still
relevant, however, as it outlines certain dangers the trial
court must take into account and protect against.
    For instance, in their review of a transcript, jurors may
    seize upon an answer without focusing on limitations
    or qualifications developed during cross-examination. If
    the request poses such a danger, the court should give
    the attorneys an opportunity to make sure that the
    transcript incorporates all appropriate and relevant
    aspects of the requested testimony. Moreover, although
    it did not happen in this case, the district court
    generally should accompany the transcripts with a
    cautionary instruction to focus on the entire testimony
    and evidence.
Id. at 1400-01. For three reasons, we concluded in Bertoli
that the trial court in that case had not abused its
discretion. First, “[t]he jury requested the transcripts of 12
witnesses, so the danger of giving undue weight to
particular testimony was minimized.” Id. at 1401. Second,
“Bertoli fails to specify a single example in the procedure
the court followed that presented a particularized danger of
prejudice.” Id. And finally, “the district court adequately
informed the jury that it was to consider the entire body of
evidence submitted in the case, and not to emphasize
unduly one piece of evidence over another.” Id.
  The facts in our case, counterposed to those in Bertoli,
point to many of the perils that may result from judge-jury
interaction in the absence of counsel. The jury here
requested the testimony of only two prosecution witnesses,
and only a single specific statement by each officer. Also, by
not informing counsel of the jury’s note before responding,
                                    17


the trial judge foreclosed any opportunity for the defense to
argue against submitting the testimony at all, or at least to
argue that the transcript should include relevant portions
of cross-examination. Moreover, the excerpted transcript
submitted by the trial judge was not accompanied by any
cautionary reminder that the jury was to consider carefully
the entire body of evidence in the case. In other words, the
safeguards we found persuasive in Bertoli are not present
here. Put another way,
     the real harm is . . . that the aggrieved party will have
     lost the value of the chance: the opportunity to
     convince the judge that some other or different
     response     would      be    more    appropriate,     the
     circumstances considered. . . . [I]t is entirely plausible
     that defense counsel, if seasonably apprised, might
     successfully have prevailed upon the district court to
     withhold the written version, or to [add a]
     supplemental instruction . . . at least to remind the
     jury of its obligation to heed the charge as a whole.
     Being kept in the dark, defense counsel was powerless
     to prime the pump of persuasion.
United States v. Parent, 954 F.2d 23, 26 (1st Cir. 1992)
(internal citation, quotation omitted).9
  Hence we conclude that Toliver’s counsel should have
been consulted concerning the jury’s first transcript request
and    been    present     during     the  District   Court’s
communication to the jury. However, we glean no particular
prejudice to Toliver by the trial judge submitting to the
jury, with or without the presence of Toliver’s counsel,
correct excerpts of limited trial testimony.

9. Parent involved, however, the trial court providing to the jury a written
supplemental instruction on the key issue of constructive possession. As
the trial judge in this case submitted excerpts of witness testimony, and
not an instruction on the applicable law, the concerns of the Parent
Court do not apply here with equal force. While defense counsel for
Toliver asserts on appeal that, had he been given notice of the jury’s
request, he would have argued that the jury be told (as initially
instructed) to rely on its collective memory, the trial judge denied this
objection (albeit ex post).
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                           * * * * *
   Should counsel have been consulted on the jury’s initial
request to receive portions of trial testimony and been
present during any judge-jury communication? The answer
is undoubtedly yes. Indeed, the District Court pursued this
path for subsequent requests. Had it done so here as well,
we would have no issue. Yet errors in circumstances like
this case can be harmless. Here we cannot conclude that
there is a reasonable possibility that the judge’s dissimilar
response to the requests prejudiced Toliver’s trial in any
meaningful way. Thus any error was harmless, and we
affirm.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
