                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1862
                         ___________________________

                                Jon Henry Sweeney

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                             Submitted: June 13, 2014
                             Filed: September 8, 2014
                                  ____________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
                           ____________

BRIGHT, Circuit Judge.

      Jon Sweeney (Sweeney) in this post-conviction proceeding seeks relief from
his underlying criminal conviction relating to the unauthorized interception of cable
service and illegal currency structuring for which he is serving 70 months (5 years,
10 months) imprisonment. Sweeney argues that his Sixth Amendment right to
counsel was violated when his attorney left the courtroom, with the permission of the
district court,1 to go to the bathroom during the government’s direct examination of
a co-conspirator. The district court recognized that the departure violated Sweeney’s
Sixth Amendment right to counsel but ruled that the violation was harmless error and
denied Sweeney’s motion to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255.

      The district court granted a certificate of appealability for Sweeney on the
following question: “Is the actual absence of counsel from trial for a brief period of
time during the direct testimony of a government witness subject to harmless-error
analysis?” Sweeney appeals on this narrow issue and argues that counsel’s absence
amounted to a structural defect requiring a presumption of prejudice that precludes
any need for harmless-error analysis. The Government contends that the absence
amounted to a trial error subject to harmless-error analysis and that the record shows
Sweeney was not prejudiced by his attorney’s absence.

      Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

       The details of the underlying criminal case are discussed at length in United
States v. Sweeney, 611 F.3d 459 (8th Cir. 2010). In short, a federal grand jury
charged Sweeney and his wife, Michelle, with several counts related to the
unauthorized interception of cable service and illegal currency structuring stemming
from their ownership and operation of Micro-Star Technology (“Micro-Star”). Id. at
463. Micro-Star manufactured cable television descramblers and other cable
television equipment that would permit users of the devices to obtain and view cable
programming without paying for it. Id. at 463. During a 13-day trial that spans


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

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roughly 2,500 transcript pages, the Sweeneys presented a joint defense strategy that
manufacturing, possessing, and selling Micro-Star’s products was not illegal unless
the Sweeneys had intended that the devices be used to steal cable television or
satellite television, which the Sweeneys argued the Government could not establish.
Id. at 467.

       A jury disagreed, convicting the Sweeneys on submitted charges of assisting
in the unauthorized interception of cable signals, conspiracy to do so, and illegal
currency structuring. Id. at 465. The district court sentenced Sweeney to 70 months
(5 years, 10 months) imprisonment and a $150,000 fine, and sentenced his wife to 42
months (3 years, 6 months) imprisonment and a $125,000 fine. Id. at 466. The
Sweeneys appealed their convictions and sentences, which this court affirmed on
direct appeal. Id. at 477.

       In October 2011, Jon Sweeney filed a motion for post-conviction relief
pursuant to 28 U.S.C. § 2255 alleging several claims of ineffective assistance of
counsel. The district court rejected each of those claims and the only issue before this
court pertains to Sweeney’s allegation that his Sixth Amendment right to counsel was
violated when his attorney briefly left the courtroom to go to the bathroom during the
direct examination of Daniel Quade, a named co-conspirator in the indictment who
had pleaded guilty.2 According to the trial transcript, Sweeney’s counsel obtained
permission from the district court—but not his client—to leave. He returned in time
to appear on the record six transcript pages later.

      Following an evidentiary hearing, during which the Sweeneys and their
respective attorneys testified, the district court concluded that although Sweeney’s


      2
        The alleged error of absence of counsel did not affect Michelle Sweeney, who
retained separate counsel. She did not appeal the district court’s denial of her motion
for post-conviction relief.

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Sixth Amendment right to counsel was violated during his counsel’s brief absence,
harmless-error analysis applied, and the violation was harmless beyond a reasonable
doubt. Sweeney appeals.

II. Discussion

       The certificate of appealability required the district court and this court on
review to answer the question of whether or not the absence of counsel from trial for
a brief period of time during the direct testimony of a government witness is subject
to harmless-error analysis. Reviewing the decision of the district court de novo,
Espinoza v. United States, 745 F.3d 943, 945 (8th Cir. 2014), we consider only this
narrow question.

        The Sixth Amendment guarantees criminal defendants the right to effective
assistance of counsel. U.S. Const. amend. VI. “Normally, in order to succeed on a
claim of ineffective assistance of counsel, the defendant must show that counsel’s
performance was ‘deficient’ and that the ‘deficient performance prejudiced the
defense.’” Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir. 2014)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). However, prejudice
may be presumed when the defendant experiences a “complete denial of counsel” at
a critical stage of his trial. United States v. Cronic, 466 U.S. 648, 659 (1984). “[T]he
trial is the paradigmatic critical stage.” United States v. Turner, 975 F.2d 490, 496
(8th Cir. 1992).

       Here, the parties agree that Sweeney’s Sixth Amendment right to counsel was
violated due to his counsel’s brief absence during trial, but disagree as to the degree
of that error and whether harmless-error analysis can apply in light of the Supreme
Court’s statement in Cronic. Sweeney argues that in light of Cronic, the error is a
structural defect that is presumptively prejudicial and requires reversal. The
Government contends that because of the brevity of Sweeney’s counsel’s absence, it

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amounted to nothing more than a trial error subject to a harmless-error analysis.
Accordingly, to answer the question of whether harmless-error analysis applies, we
must first determine what type of violation occurred.

        The Supreme Court has divided constitutional violations that occur during a
criminal proceeding into two categories: trial errors and structural defects. Arizona
v. Fulminante, 499 U.S. 279, 307-10 (1991); see also Sullivan v. Louisiana, 508 U.S.
275, 282 (1993) (Rehnquist, C.J., concurring) (describing the two categories);
Chapman v. California, 386 U.S. 18, 22-24 (1967) (fashioning a harmless-error rule).
A “trial error” is an error that may “be quantitatively assessed in the context of other
evidence presented,” and is subject to harmless-error analysis. Fulminante, 499 U.S.
at 307-08. A “structural defect” is something that “affect[s] the framework within
which the trial proceeds, rather than simply an error in the trial process itself” and
thus “def[ies] analysis by ‘harmless-error’ standards.” Id. at 309-10. The Supreme
Court has recognized that “most constitutional errors can be harmless,” id. at 306, and
that structural defects “are the exception and not the rule.” Rose v. Clark, 478 U.S.
570, 578-79 (1986); see Fulminante, 499 U.S. at 306-07, 309-10 (listing examples of
trial errors and structural defects); see also Sullivan, 508 U.S. at 282 (Rehnquist, C.J.,
concurring) (stating that there is a “‘strong presumption’ that any error will fall into
the first of these categories” and “it is the rare case in which a constitutional violation
will not be subject to harmless-error analysis.” (internal citations omitted)). Only
structural defects that undermine “the fairness of a criminal proceeding as a whole . . .
require[] reversal without regard to the mistake’s effect on the proceeding.” United
States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (citing Fulminante, 499 U.S. at
309-10).

      Sweeney argues that the Supreme Court’s 1984 decision in Cronic precludes
harmless-error analysis. In Cronic, the Supreme Court stated that prejudice may be
presumed when the defendant experiences a “complete denial of counsel” at a critical
stage of trial. 466 U.S. at 659 (emphasis added). According to Cronic, such

                                           -5-
presumption is required “only when surrounding circumstances justify a presumption
of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into
counsel’s actual performance at trial.” Id. at 662.

       The Supreme Court subsequently has stated that only those “Sixth Amendment
violations that pervade the entire proceeding” can “never be considered harmless.”
Satterwhite v. Texas, 486 U.S. 249, 256 (1988) (emphasis added) (applying harmless-
error analysis to the denial of counsel prior to a psychiatrist’s examination of a capital
murder defendant, which is considered a critical stage). Sweeney’s counsel’s brief
absence was not a “complete” absence because it only lasted three minutes. Although
the absence occurred at a “critical stage,” the brevity of the absence distinguishes this
case from the “complete denial of counsel” discussed in Cronic. See 466 U.S. at 659
(emphasis added). Moreover, several of our sister circuits have stated post-Cronic
that, under some circumstances, harmless-error analysis may apply for an absence of
counsel at a critical stage.3


      3
        See, e.g., United States v. Kaid, 502 F.3d 43, 45, 47 (2d Cir. 2007) (per
curiam) (concluding that counsel’s twenty-minute absence from the courtroom during
a testimonial phase of a criminal trial did not constitute ineffective assistance of
counsel because the appellant could not establish prejudice); Ditch v. Grace, 479 F.3d
249, 256 (3d Cir. 2007) (“A denial of counsel at any critical stage at which the right
to counsel attaches does not require a presumption of prejudice. Rather, a
presumption of prejudice applies only in cases where the denial of counsel would
necessarily undermine the reliability of the entire criminal proceeding.”); United
States v. Owen, 407 F.3d 222, 226 (4th Cir. 2005) (“[H]armless-error analysis applies
to the denial of the Sixth Amendment right to counsel at all stages of the criminal
process, except for those where such denial ‘affects and contaminates’ the entire
subsequent proceeding.”); Hoffman v. Arave, 236 F.3d 523, 540 (9th Cir. 2001)
(concluding that a defendant had been denied counsel at a critical stage and stating,
“[t]he next step of our analysis is to ask whether this constitutional violation is
‘harmless error’”); United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998)
(concluding attorney’s decision to leave the courtroom due to an illness did not
violate client’s Sixth Amendment right to counsel at an evidentiary hearing on a new

                                           -6-
       Here, the district court, largely relying on Fulminante, 499 U.S. at 307-10,
concluded that counsel’s brief absence from the courtroom constituted trial error and
not a structural defect. We agree. As the district court stated:

      There is a fundamental difference between a total denial of counsel—
      which pervades the entire proceeding and makes it impossible to gauge
      how the assistance of counsel might have made a difference—and an
      attorney’s momentary absence during a lengthy trial in which the
      attorney otherwise fully and actively participated.

The district court continued:

              While the Court would not go so far as to call six pages’ worth of
      trial testimony “de minimis,” the Court believes that it is abundantly
      clear that [Sweeney’s counsel’s] brief absence did not pervade or
      contaminate the entire trial or affect the framework in which the trial
      proceeded. [Sweeney’s counsel] was gone for about 3 minutes of a 13-
      day trial—or, put differently, during less than 6 pages of a trial record
      that spans over 2,500 pages. The fact that the record demonstrates
      precisely what [Sweeney’s counsel] missed while he was out of the
      room—and the fact that his absence was so brief—allows the Court to
      confidently assess whether Sweeney was harmed by [his counsel’s]
      absence. Indeed, the Court is far better equipped to conduct a harmless-
      error analysis in this case than it is in other contexts, in which a
      substantial amount of speculation is unavoidable.

The district court further noted that the testimony taken during Sweeney’s counsel’s
absence did not reveal anything disputed or unknown to defense counsel well before
trial and, despite his absence, Sweeney’s counsel’s cross-examination of Quade “was
extensive and effective” and obtained answers that supported the defense theory that
no conspiracy existed. Additionally, the brevity of the absence distinguishes the
present case from the analysis in previous cases before this court relating to this issue

trial motion).

                                          -7-
of the absence of counsel during the entire proceeding. See Green v. United States,
262 F.3d 715, 717-18 (8th Cir. 2001) (concluding that erroneous denial of counsel at
§ 2255 hearing is not subject to harmless-error analysis); Turner, 975 F.2d at 496
(presuming prejudice when counsel was gone for various parts of eight trial days but
affirming because defendant’s waiver of counsel was proper).

       Accordingly, we agree with the district court’s ruling that the constitutional
violation in this case was subject to harmless-error analysis. Because the certificate
of appealability in this case is limited to the question of whether harmless-error
analysis applies, we do not address the district court’s conclusion that the error was
harmless beyond a reasonable doubt.

III. Conclusion

      Accordingly, we affirm.
                     ______________________________




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