                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1355
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Nathan Wayne Smith

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Southern District of Iowa - Council Bluffs
                                  ____________

                          Submitted: September 11, 2014
                            Filed: November 12, 2014
                                 ____________

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       A jury convicted Nathan Wayne Smith of bank robbery in violation of 18
U.S.C. § 2113(a). He appeals, claiming the district court1 committed constitutional
error by allowing the jury to view a replay of video exhibits outside the presence of


      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
the defendant, and without notifying defense counsel. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

                                           I.

        At about 9:30 am one June morning, a man entered a bank in Hamburg, Iowa.
He wore a white visor, lightly tinted sunglasses, a gray or white baggy t-shirt, and
dark baggy pants with black-and-white tennis shoes. He pushed a plastic bag at the
teller and told her to “fill it up.” Cameras recorded the robbery. A witness saw an
early-90s Cadillac speeding away from the area of the bank. It had a dark green
exterior and a light-colored vinyl top. The bank’s outside ATM camera twice
recorded a vehicle with this description.

       Smith lived in Lexington, Missouri, a three-hour drive from Hamburg. He
owned a dark green 1995 Cadillac with a light-colored vinyl top. It had an ignition
interlock device, which, three-and-a-half hours after the robbery, was serviced in
Missouri. The device showed that the car ran continuously from 6:30 am until 11:17
am, then again for shorter periods before 1:00 pm that day—the only time the car ran
this long between February and July that year. Smith paid $175 cash for the
service—$150.30 more than required by his lease.

       Minutes after the service, an officer stopped Smith in the Cadillac for a
registration violation. The officer’s camera showed Smith wearing a light gray t-shirt.
On the seat next to him were lightly tinted gold-rimmed sunglasses. Smith told the
officer he was currently unemployed. The day after the robbery, Smith paid $1,475
cash for a car, without test-driving it. Seven days after the robbery, two bank tellers,
viewing a six-person photo lineup, independently identified Smith as the robber.
Days later, police searched his home, seizing a pair of black-and-white tennis shoes
and a light colored T-shirt, like the robber’s. They also found his Cadillac under a car
cover with the license plates removed.

                                          -2-
       At issue are four video exhibits entered without objection and shown to the jury
during trial. As the jury prepared to deliberate, the court told counsel: “All of the
exhibits will go back. The videos, if the jury wishes to see them, we’ll play them for
them in the courtroom. Please make sure someone other than one of the attorneys is
here to play those for us if we need that done.”

       During deliberation, the jury requested to view the four videos. The equipment
to play them was in the courtroom. The jury came back to the courtroom. The judge
and the court reporter were there. A staff member of the U.S. Attorney’s office—who
had played the videos at trial—played them for the jury.


      THE COURT: Take your seats.
      JUROR [#1]: Are we able to look at the smaller monitor?
      THE COURT: Take your seats.
      We are on the record, the Court having received a question from the
      jury, the question being, “We would like to see the three bank videos
      (not the ATM) and the Amer video from Buckner. We would [sic] a
      smaller screen versus the large monitor,” and it’s signed by the foreman,
      [Juror #3].
      The Court can certainly provide you with a chance to see those videos,
      and we’ll do that in just a moment. I can’t alter the way you were shown
      the videos during the trial. I will allow you, if you wish, to step closer
      to the monitor, because obviously some of you are closer than others.
      So if you wish to come out of the jury box and be closer to the monitor
      while they’re being played, you’re welcome to do that, but I will not be
      able to give you a different monitor to look at.
      JUROR [#2]: Can we look off of that monitor that the—
      THE COURT: That monitor will be there when you’re standing over
      there.
      JUROR [#2]: Okay.

                                         -3-
THE COURT: So if you want to come closer to the monitors, you may.
JUROR [#3]: I would say the people that have the biggest questions, get
toward the front.
THE COURT: Don’t tell me that.
Okay. Alright. Deb, would you just play them in order.
And then if you wish to see them again, tell me.
JUROR [#2]: And if we ask to stop, can she?
THE COURT: She will.
JUROR [#2]: Okay.
(Exhibit 2 played in open court.)
JUROR [#1]: Why don’t we stop and back it up to about halfway in
between.
THE COURT: Kelli, we don’t need to record their discussion.
(Discussion off the record.)
THE COURT: Folks, avoid much discussion. Just tell us what you
want to see.
Are you ready for the next video?
(Exhibit No. 3 played in open court.)
(Discussion off the record.)
THE COURT: Next one, please.
(Government exhibit 4 played in open court.)
THE COURT: And then you wanted the Officer Amer stop in Buckner.
(Government exhibit 12 played in open court.)
THE COURT: Anybody need to see anything again?


                                    -4-
      A JUROR: No.
      JURORS IN UNISON: Thank you.
      THE COURT: Thank you, folks.
Twenty-one minutes after reviewing the videos, the jury reached its verdict.

                                           II.

       Smith argues the district court should have notified him and his counsel about
the jury’s request to replay the video evidence, giving him an opportunity to be
present and heard on the issue. He also contends that replaying the video exhibit to
the jury is a critical trial stage triggering a right to be present under the Fifth and
Sixth Amendments of the United States Constitution and Federal Rule of Criminal
Procedure 43(a)(2).

       The government argues that, even if the district court erred by replaying the
videos without notifying Smith and his counsel, any error is reviewed only for plain
error. Although the district court briefly told counsel how it would address the jury’s
request to play the videos, the court did not indicate whether the defendant (or
counsel) would be notified or given an opportunity to be heard. Since Smith and his
counsel had no chance to object to the replay, plain error is not the standard of
review. Fed. R. Crim. P. 51(b) (“If a party does not have an opportunity to object
to a ruling or order, the absence of an objection does not later prejudice that party.”).

       “We review whether a trial court conducted a proceeding in violation of
defendants’ right to be present during every stage of trial under an abuse of discretion
standard. If a proceeding was conducted in violation of this right, it is subject to
harmless error analysis.” United States v. Barth, 424 F.3d 752, 762 (8th Cir. 2005)
(internal citations omitted). See Chapman v. California, 386 U.S. 18, 24 (1967)



                                          -5-
(“[B]efore a federal constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable doubt.”).

       “The Fifth and Sixth Amendments protect a criminal defendant’s right to be
present at all stages of the trial, and a trial court must provide the defense attorney
with notice and a meaningful opportunity to object before responding to a question
asked by the jury once deliberations begin.” Stewart v. Nix, 972 F.2d 967, 971 (8th
Cir. 1992) (internal citations omitted). “Communication between judge and jury in
the absence of and without notice to the defendant creates a presumption of prejudice.
Such presumption may be overcome, however, by a clear indication of a lack of
prejudice.” Id. (internal citations omitted). See also United States v. Olano, 507 U.S.
725, 739 (1993) (“There may be cases where an intrusion should be presumed
prejudicial . . . but a presumption of prejudice as opposed to a specific analysis does
not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and
thereby its verdict?”).

       In Shelton v. Purkett, 563 F.3d 404 (8th Cir. 2009), this court addressed a trial
court’s grant of a “deliberating jury’s request to view exhibits . . . without informing
counsel that the court was communicating with the jury.” Id. at 407-08. Although
this court assumed that the communication was constitutional error, “[w]e
questione[d] whether the act of handing over a previously admitted exhibit qualifies
as the sort of ‘presumptively prejudicial communication’ Stewart addressed, as it
seems more ministerial than substantive.” Id. at 408. See generally United States v.
Muhlenbruch, 634 F.3d 987, 1001-02 (8th Cir. 2011) (“It is within the sound
discretion of the trial court to determine whether to allow a jury to review properly
admitted testimony or recordings during deliberations.”).

       Even if the district court abused its discretion by replaying the videos without
notifying the defendant and his counsel, the error was harmless beyond a reasonable
doubt. The district court was present during the replay, and the transcript shows no

                                          -6-
prejudicial dialogue. Although what was said off the record is unknown, the court
instructed the jury to avoid discussion and to “just tell us what you want to see.” See
Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298, 1305 (8th Cir. 1996) (“It is
certainly reasonable to believe, absent evidence to the contrary, that the jury adhered
to the judge’s instructions.”). The jury was in the courtroom for a total of 11 minutes
to view all four videos—which together last 7 minutes 45 seconds (and it appears one
video was backed up and played halfway through again). Although a non-attorney
IT specialist from the U.S. Attorney’s office played the videos, the court instructed
her what to play and when to play it.

        Overwhelming evidence showed Smith committed the robbery. Two tellers
independently identified him as the robber in a photo lineup a week after the robbery.
He owned a unique Cadillac identical to the one used in the robbery (which soon had
its license plates removed). The drive times on the ignition interlock device meshed
with the robbery timeline. Despite claiming to be unemployed, he made large cash
transactions within 24 hours after the robbery. Smith’s clothing resembled the bank
robber’s.

      Finally, Smith was present and did not object during trial when the court
admitted the videos into evidence and they were played to the jury. Defense counsel
played one video during his closing argument. This court finds beyond a reasonable
doubt that the video replay outside of Smith’s (and his counsel’s) presence was
harmless.2


      2
        Neither this court nor the Supreme Court has directly addressed whether the
replay of video evidence to a deliberating jury is a critical stage in trial. The circuits
are split on this issue. See United States v. Monserrate-Valentin, 729 F.3d 31, 58
(1st Cir. 2013) (discussing cases). Since replaying the videos without notifying the
defendant or his counsel was harmless beyond a reasonable doubt, this court need not
address whether the replay is a critical trial stage. See Rushen v. Spain, 464 U.S.
114, 117-19 (1983) (holding the right to personal presence at all stages of trial is

                                           -7-
                                   *******


      The judgment is affirmed.


                      ______________________________




reviewed for harmless error); Rogers v. United States, 422 U.S. 35, 40 (1975) (“[A]
violation of Rule 43 may in some cases be harmless error.”).

                                        -8-
