PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 98-4212
TROY ROLLE, a/k/a Robert Stan
Marks,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong Jr., District Judge.
(CR-97-608)

Argued: October 29, 1999

Decided: February 14, 2000

Before MOTZ, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Motz and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Linda S. Sheffield, Decatur, Georgia, for Appellant. Har-
old Watson Gowdy, III, Assistant United States Attorney, Greenville,
South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________
OPINION

KING, Circuit Judge:

On August 26, 1997, appellant Troy Rolle was charged in the Dis-
trict of South Carolina with conspiracy to traffic in cocaine and
cocaine base, and possession of the same with intent to distribute.1
Rolle's trial on these charges was conducted in the district court in
Spartanburg on March 3 and 4, 1998, at the conclusion of which the
jury returned a verdict of guilty on both counts. Following his sen-
tencing to life in prison on each count, Rolle appeals his convictions
and sentences.

In his appeal, Rolle asserts numerous errors, specifically that: (1)
he was denied his right to be present during the district court's ques-
tioning of prospective jurors; (2) the district court erred in striking
some prospective jurors for cause and failing to strike others; (3) the
Government exercised its peremptory strikes in a racially discrimina-
tory fashion; (4) the evidence was insufficient to support his conspir-
acy conviction; (5) the prosecutor improperly vouched for the
credibility of a crucial witness; and (6) the district court erroneously
calculated the amount of cocaine attributable to him for sentencing
purposes. Finally, Rolle asserts ineffective assistance of counsel at
trial. For the reasons enunciated below, we find no reversible error
and affirm Rolle's convictions and sentences.

I.

A.

Jury selection for Rolle's trial began on March 3, 1998. As is a
common practice, potential jurors completed questionnaires prior to
trial for use of the parties and the court. The questionnaires were
designed to determine each juror's ability to be fair and impartial, and
_________________________________________________________________
1 The two-count indictment specifically charged Rolle with conspiracy
to possess with intent to distribute and to distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846, and also with possession of cocaine
and cocaine base with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1).

                     2
to otherwise assist in the jury selection process. Based on responses
to these questionnaires, the Government and Rolle's trial counsel
identified approximately sixteen potentially biased jurors to the court.
The court determined that individual voir dire of these jurors was nec-
essary, so it summoned them singly into chambers, together with the
attorneys.2 The court and the attorneys then closely questioned the
jurors to assess their impartiality. This process consumed two to three
hours, occupying substantially the entire morning of the first day of
trial.3

As the identified jurors were being called into chambers, Rolle
remained in the custody of the Marshal in the courtroom, and he was
not physically present for any of the individual voir dire. No objection
was made to any of these procedures, by either Rolle's counsel or by
the Government attorneys. Subsequent to the individual voir dire of
these prospective jurors, the proceedings reconvened in open court.
The exercise of peremptory strikes by the parties, and completion of
other jury selection procedures, occurred in Rolle's presence.
_________________________________________________________________
2 In preparing for the individual voir dire proceedings, the district court
informed the venire as follows:

          With some of you there are some questions that have been raised
          as to some of the responses to the questions. And I'm going to
          at this time bring you into another room, confidentially, and ask
          you additional questions concerning your responses. So we're
          going through that process at this time. In that connection, I'm
          going to need all attorneys involved in criminal cases to partici-
          pate in this. I'm going to have the court reporter go into the jury
          room and we'll go in and call you in one at a time. We'll do that
          at this time.

J.A. 56. The court ultimately called only twelve of the identified jurors
into chambers. It struck the other four potentially biased prospective
jurors for cause without questioning them individually.
3 The jury selection process occurred in three distinct stages. First, a
general voir dire of the entire venire took place after the court initially
convened. Second, after concerns were raised regarding the potential bias
of certain prospective jurors, the court conducted individual voir dire of
the identified jurors in chambers. Third, after the individual voir dire was
concluded, the proceedings reconvened in open court to complete the
jury selection process.

                    3
Rolle asserts on appeal that his exclusion from the individual voir
dire proceedings requires reversal of his convictions. As we explain
below, we are unable to find reversible error.

B.

The Confrontation Clause of the Sixth Amendment and the Due
Process Clause of the Fifth Amendment together guarantee a defen-
dant charged with a felony the right to be present at all critical stages
of his trial. As a constitutional matter, a defendant thus has the right
"to be present at all stages of the trial where his absence might frus-
trate the fairness of the proceedings." Faretta v. California, 422 U.S.
806, 819 n.15 (1975) (citation omitted). We have recognized that an
accused's absence during the jury selection process can potentially
frustrate the fairness of a trial by denying the defendant an opportu-
nity to "give advice or suggestions to his lawyer concerning potential
jurors". United States v. Camacho, 955 F.2d 950, 953 (4th Cir. 1992)
(citation omitted). Furthermore, an accused's absence from portions
of voir dire may also prevent him from effectively exercising his
peremptory challenges, a "process that is essential to an impartial
trial." Id. (citing Lewis v. United States, 146 U.S. 370, 378 (1892)).

Rule 43(a) of the Federal Rules of Criminal Procedure, deriving
from these constitutional guarantees and the even broader common
law privilege,4 explicitly confers the more expansive right to "be pres-
_________________________________________________________________
4 See United States v. Gregorio , 497 F.2d 1253, 1257-59 (4th Cir.
1974), overruled on other grounds by United States v. Rhodes, 32 F.3d
867 (4th Cir. 1994). In Gregorio, we discussed the common law founda-
tion of the right of presence and held that, even in cases where the Sixth
Amendment right of confrontation is not implicated, an accused's right
of presence is premised on two basic principles:

          (1) assuring nondisruptive defendants the opportunity to observe
          -- and, it is to be hoped, to understand -- all stages of the trial
          not involving purely legal matters generally incomprehensible to
          the layman in order to prevent the loss of confidence in courts
          as instruments of justice which secret trials would engender;
          [and] (2) protecting the integrity and reliability of the trial mech-
          anism by guaranteeing the defendant the opportunity to aid in his
          defense.

Id. at 1258-59 (citations omitted).

                     4
ent . . . at every stage of the trial, including the impaneling of the jury
. . ." Fed. R. Crim. P. 43(a). Rule 43 was originally intended to be "a
restatement of existing law." Fed. R. Crim. P. 43, 1944 Advisory
Committee Note, Para. 1 (citations omitted). As we noted in
Camacho, Rule 43 has "traditionally been understood to codify both
a defendant's constitutional right and his common law right to pres-
ence. Accordingly, its `protective scope' is broader than the constitu-
tional right alone." Camacho, 955 F.2d at 953 (citations omitted).5

Included within the expansive scope of a criminal defendant's Rule
43(a) right of presence is the right to be present at the voir dire of pro-
spective jurors. United States v. Tipton, 90 F.3d 861, 872 (4th Cir.
1996) (citations omitted). As we recognized in Camacho, a defen-
dant's presence at voir dire is of utmost importance:

          [T]he defendant has unique knowledge which is important
          at all stages of the trial, including voir dire. At the voir dire
          he may, for example, identify prospective jurors that he
          knows. He may also have knowledge of facts about himself
          or the alleged crime which may not have seemed relevant to
          him in the tranquility of his lawyer's office, and thus may
          not have been disclosed, but which may become important
          as the individual prejudices or inclinations of the jurors are
          revealed. He may also be a member of the community in
          which he will be tried and might be sensitive to particular
          local prejudices his lawyer does not know about.

Camacho, 955 F.2d at 956 (quoting United States v. Alessandrello,
637 F.2d 131, 151 (3rd Cir. 1980) (Higginbotham, J., dissenting)
(decision holding that brief absence from voir dire was harmless
error)).

Although it earlier asserted a contrary position, the Government
now concedes that Rolle had a right to be present during the individ-
_________________________________________________________________
5 See Gregorio, 497 F.2d at 1257 (reasoning that, because the language
in Rule 43 "is a crystallization of these statements of the common law,
we believe that the rule should be interpreted in light of the evolving
meanings and purposes of the common law").

                     5
ual voir dire in the court's chambers.6 Here, the judge and counsel pri-
vately questioned twelve prospective jurors while Rolle was in the
Marshal's custody in the courtroom. At no time did anyone suggest
or assert that Rolle should be present during this stage of trial. How-
ever, at oral argument, the Government conceded that an error
occurred and acknowledged that, pursuant to its responsibilities to the
_________________________________________________________________
6 In its brief, the Government initially contended that Rolle had no right
to be present, characterizing the in camera proceedings conducted here
as a hearing on challenges for cause. It asserted that such a hearing is a
"legal conference" and maintained that a defendant's presence is not
required at a conference or argument on a question of law. See Fed. R.
Crim. P. 43(c)(3). However, a "hearing on challenges for cause" is an
incomplete and inaccurate characterization of the proceedings at issue
here.

The Government alternatively maintained that if Rolle had a right to
attend the in camera proceedings, he waived that right when, after the
district court announced its intention to individually question certain
jurors, Rolle did not request to be present. In support of this argument,
the Government relied on United States v. Gagnon , 470 U.S. 522, 528
(1985) (district court need not obtain express waiver "for every trial con-
ference which a defendant may have a right to attend"), as well as our
decision in United States v. Ford, 88 F.3d 1350, 1368 (4th Cir. 1996)
(defendants waived their right to attend individual voir dire of prospec-
tive jurors conducted at the bench by failing to object before the jury was
sworn). At oral argument, however, the Government altered its position,
indicating that the "better argument" is that Rolle's failure to object
resulted in a procedural forfeiture, rather than a waiver.

We agree, and find both Gagnon and Ford readily distinguishable. The
proceedings here were entirely different from the trial conference in
Gagnon and the bench conference (with the defendants present in the
courtroom) in Ford. Here, the district court conducted portions of voir
dire in its chambers outside of Rolle's presence without effectively mak-
ing the scope of the proceedings known. It is not clear from the district
court's statement to the venire, see supra at 3 n.2, that the in camera pro-
ceedings were intended to address the issue of whether prospective jurors
could be impartial. Thus, Rolle was never specifically advised and can-
not reasonably be said to have understood that the in camera proceedings
would encompass questions of potential bias and impartiality. Accord-
ingly, Rolle could not have knowingly and voluntarily waived his right
to be present during the individual voir dire conducted in chambers.

                    6
justice system, it should have drawn the court's attention to Rolle's
absence during the proceedings in question.7

C.

1.

Our analysis of Rolle's claim is informed by our Tipton decision,
where we addressed a similar violation of a defendant's right of pres-
ence. There, we examined whether the exclusion of the defendants
from in camera individualized examinations of prospective jurors,
designed to explore the jurors' attitudes on the death penalty and
reveal potential racial biases, constituted reversible error. We
assumed in Tipton, without deciding, that error had occurred "in the
form of a `deviation' from the constitutionally-grounded legal rule
that presence was required throughout the proceedings at issue." 90
F.3d at 874. We assumed further that any such error was "plain." Id.

Like the defendants in Tipton, neither Rolle nor his counsel made
any contemporaneous challenge to the voir dire proceedings being
conducted in Rolle's absence; thus, we are required to examine
_________________________________________________________________
7 Prosecutors have "a unique role in the criminal justice system, which
regards them not just as advocates but as ministers of justice."
ABA/BNA Law. Manual on Prof. Conduct, 61:601 (1999). As such, the
prosecutor has a special obligation to the criminal justice system to see
that justice is done and ensure that a "defendant is accorded procedural
justice and that guilt is decided on the basis of sufficient evidence."
Model Rules of Professional Conduct, Rule 3.8 cmt. (1995). When pro-
secutorial efforts fall short of this obligation, we are reminded of Justice
Sutherland's classic admonition:

          The United States Attorney is the representative not of an ordi-
          nary party to a controversy, but of a sovereignty whose obliga-
          tion to govern impartially is as compelling as its obligation to
          govern at all; and whose interest, therefore, in a criminal prose-
          cution is not that it shall win a case, but that justice shall be
          done.

Berger v. United States, 295 U.S. 78, 88 (1935). We would be remiss,
however, if we failed to note the commendable candor with which coun-
sel for the Government has acknowledged its responsibility to the court.

                    7
Rolle's exclusion from these proceedings under the"plain error" anal-
ysis. Fed. R. Crim. P. 52(b).8 While Rolle's failure to object does not
necessarily extinguish any error caused thereby, it imposes stringent
limitations on our ability to correct any such error.

The Supreme Court's holding in United States v. Olano, 507 U.S.
725 (1993), guides our analysis on the proper application of Rule
52(b)'s "plain error" limitation on appellate notice of forfeited errors.
Under Olano, four conditions must be met to notice plain error under
Rule 52(b): (1) there must be error, i.e., a deviation from a legal rule;
(2) the error must be plain under current law; (3) the plain error must
affect substantial rights, which typically means that the defendant is
prejudiced by the error in that it "affected the outcome" of the pro-
ceedings; and (4) the error must seriously affect"the fairness, integ-
rity or public reputation of judicial proceedings." Id. at 733-36. As the
Supreme Court's holding in Olano indicates, we may correct forfeited
error only if it is "plain" and "affects substantial rights." Even then we
are "not required to do so" unless the error is one that "causes the con-
viction or sentencing of an actually innocent defendant," or otherwise
"seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." Id. at 735-36 (citations omitted).

2.

Our application of the relevant authorities to these facts compels us
to hold that Rolle's absence from the individual voir dire proceedings
conducted in his trial violated his right to be present during the critical
stage of jury selection. Having demonstrated a plain deviation from
the constitutionally-grounded strictures of Rule 43(a), Rolle has,
under these facts, satisfied the first two prongs of Olano. However,
Rolle's claim of reversible error must fail if the error did not affect
any of Rolle's "substantial rights."
_________________________________________________________________

8 Rule 52(b) provides, "[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of
the court."

                     8
3.

In Olano, the Court indicated that there are potentially three ways
to demonstrate that plain error has prejudiced an accused's substantial
rights. First, a defendant may demonstrate that an error affected his
substantial rights by a specific showing -- the burden being upon him
-- that the error has caused him actual prejudice by affecting the out-
come of the trial. Id. at 734.9 Second, aside from this most obvious
means, the Court noted -- without deciding -- that there might be
forms of forfeited error that, for Rule 52(b) purposes, affect substan-
tial rights independent of any prejudicial impact. Id. at 735. Third, the
Court also suggested that there may be categories of error from which
prejudice should be presumed, notwithstanding that the defendant
could not make a specific showing. Id. at 735.

Adhering to the Court's analysis in Olano, we recognized in Tipton
that we must "address all three possibilities, assuming arguendo the
existence of the latter two forms of correctable forfeited errors as to
which actual prejudice either need not or cannot be proved." 90 F.3d
at 874 (citation omitted). Rolle does not assert, however, that the error
here falls within either of the latter two categories, instead relying on
his claim of actual prejudice.

Rolle's reluctance to embrace either of the two latter categories is
prudent and reasonable in light of Tipton. As for the second category,
errors that affect substantial rights independent of any prejudicial
impact, we concluded in Tipton that if such a category of plain error
does in fact exist, "absence from portions of a jury voir dire is not
among them." Id. at 875. Similarly, with regard to the third category,
we stated that while "[t]here may be circumstances of involuntary
absence from jury voir dire where prejudice should be presumed . . .
we think they could only involve absences throughout the entire pro-
cess." Id. (citing United States v. Crutcher, 405 F.2d 239, 244 (2d Cir.
1968) (complete absence never harmless error)); see also Camacho,
_________________________________________________________________
9 The Court indicated that such a specific showing would ordinarily be
the only means of demonstrating that an error has affected substantial
rights, stating, "In most cases, a court of appeals cannot correct the for-
feited error unless the defendant shows that the error was prejudicial."
507 U.S. at 734 (citation omitted).

                     9
955 F.2d at 955-57 (while not reaching the issue of whether such
error could ever be harmless, refusing to hold defendant's absence
from the entire voir dire process to be harmless beyond a reasonable
doubt). Therefore, if any prejudice to Rolle is to be found in this
instance, it must be by a specific showing.

To establish actual prejudice, Rolle must show that his absence
from the individual voir dire proceedings in his case "affected the out-
come of the [trial]," or "probably influenced the verdict[s]" against
him. Olano, 507 U.S. at 734-35. As we noted in Tipton, exactly how
a criminal defendant may demonstrate "that his absence during por-
tions of a jury selection process actually `affected the outcome of
[trial],' or `probably influenced the verdict' against him has never
been definitively explored." 90 F.3d at 876. Strictly construed, the
"actual prejudice" standard appears to require Rolle to establish that
his absence

          resulted in selection of a jury that probably reached a verdict
          different from that which would have been reached by a jury
          selected with benefit of his presence at the times of his
          absence.

Id. If this is the ultimate burden, we have recognized that it is "near
if not beyond the limits of practical possibility[to carry] given the
variables in the process and evidentiary restrictions." Id.

If his burden is not this stringent, Rolle would at least be compelled
to demonstrate that his absence somehow affected the selection of the
jury. Id. As Judge Phillips noted in Tipton, an accused's right to pres-
ence is not violated, and thus could not be prejudicial, unless his pres-
ence would have made some demonstrable difference. Id. At the same
time, however, merely demonstrating that "some difference" in the
makeup of the jury would have resulted from his presence is not suffi-
cient for Rolle to establish actual prejudice. As we explained in
Tipton:

          If no more is shown, for example, than that jurors 1, 3, and
          5 would have been excluded, this could not suffice to show
          that their presence caused the finally unfavorable"out-
          come." Something more, for example, that jurors 1, 3, and

                     10
          5 in the above hypothetical were demonstrably biased,
          surely must be shown, and even that might not, under all the
          circumstances, suffice.

Id. We have never explicitly determined what precise showing
between these two extremes (on one hand, demonstrating that the ver-
dict would have been different, and on the other hand, merely show-
ing that the jury might have been constituted in a meaningfully
different way) is sufficient to establish actual prejudice. Nevertheless,
we need not make this determination here, since we conclude that
Rolle has failed to meet even the lesser threshold.

In support of his claim that we should find actual prejudice, Rolle
asserts the following: (a) no African-Americans were on the jury; (b)
he was denied the opportunity to ask questions of and provide input
to his counsel in determining the qualifications of those jurors who
were ultimately chosen to hear the case; (c) he was denied the oppor-
tunity to comment or raise objections through counsel when the court,
in camera, struck certain jurors for cause and sought to rehabilitate
others; and (d) his presence in the courtroom after the in camera pro-
ceedings was insufficient to address the above deficiencies, since he
lacked the information necessary to participate intelligently in jury
selection.

While recognizing the validity of Rolle's concerns, we are unable
to conclude that his proffered reasons are sufficient to demonstrate
actual prejudice. Clearly, Rolle is unable to show that his absence
from the individual voir dire proceedings actually resulted in a jury
panel that reached a verdict different from that which would have
been reached otherwise. Indeed, Rolle is unable to demonstrate any-
thing beyond his mere speculation that the makeup of the jury panel
might have been different.10 In Tipton, we explicitly rejected this posi-
_________________________________________________________________
10 Contrary to the representations of counsel at oral argument, our
review of the record indicates that one of the prospective jurors ques-
tioned in individual voir dire, Juror No. 104, was in fact impanelled.
Nevertheless, Rolle does not specifically allege that this juror would
have been excluded from the jury if Rolle had attended the individual
voir dire proceedings; even if he had established such an allegation, this
alone would not be enough to evidence actual prejudice.

                     11
tion as being insufficient to establish actual prejudice. 90 F.3d at 876.
Accordingly, we conclude that Rolle has failed to carry his burden to
demonstrate actual prejudice resulting from his absence during the
individual voir dire proceedings.

D.

In sum, we conclude that the exclusion of Rolle from an important
portion of his criminal trial -- the individual voir dire of twelve mem-
bers of the prospective jury panel -- was a violation of his
constitutionally-grounded Rule 43 right to be present, and therefore
constitutes "error" that is "plain." However, because Rolle is unable
to demonstrate that his absence from these voir dire proceedings
affected his "substantial rights," there is no reversible error to be found.11

II.

A.

We have carefully considered the remainder of Rolle's challenges
to his convictions, see supra at 2, and we conclude that none are of
sufficient merit to warrant reversal of the district court's judgment.
We withhold adjudication, however, of Rolle's assertion that his trial
counsel was ineffective, inasmuch as the record below fails to conclu-
sively establish counsel's alleged ineffectiveness. See United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Rolle may choose to present
this claim in a proceeding under 28 U.S.C. § 2255.

B.

Rolle contends that the district court incorrectly calculated the
quantity of cocaine attributable to him for sentencing purposes. Rolle
was sentenced as a career offender, see United States Sentencing
Commission, Guidelines Manual, §4B1.1, with the result that his
_________________________________________________________________

11 Having found no prejudice, we need not consider the fourth prong of
the Olano analysis to determine whether the error here, even if prejudi-
cial, so "seriously affect[ed] the fairness, integrity or public reputation of
the judicial proceedings" as to warrant correction.

                     12
offense level was determined with regard to the statutory maximum
penalty applicable to the counts of conviction.

It is undisputed that, upon his arrest, Rolle was found with 187
grams of cocaine base, an amount subjecting him to a maximum pen-
alty of life imprisonment. See 21 U.S.C.§ 841(b)(1)(A) (conviction
for possession with the intent to distribute 50 grams or more of
cocaine base requires term of imprisonment that"may not be less than
10 years or more than life"). Rolle's offense level was therefore cal-
culated as 37, see U.S.S.G. § 4B1.1(A), with a concomitant criminal
history category of VI. Because Rolle was sentenced within the resul-
tant imprisonment range of 360 months to life, any miscalculation
that the district court may have made with regard to attributing addi-
tional quantities of drugs to Rolle was immaterial.

III.

For the foregoing reasons, we affirm Rolle's convictions and sen-
tences in all respects.

AFFIRMED

                    13
