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                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-11845
                              ________________________

                        D.C. Docket No. 1:13-cr-20641-KMM-1



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

LOURDES MARGARITA GARCIA,

                                                         Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                    (October 19, 2018)

Before MARCUS and WILSON, Circuit Judges, and GRAHAM, District Judge. *


*
 Honorable James L. Graham, United States District Judge for the Southern District of Ohio,
sitting by designation.
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MARCUS, Circuit Judge:

      This is a troubling case. There can be no doubt -- and the government does

not contest the point -- that constitutional error occurred. It is also clear that the

error was plain and obvious. The decision to allow the government to introduce

inculpatory evidence while both the defendant and her lawyer were absent for three

to ten minutes in a trial that lasted more than 49 hours violated the defendant’s

right to counsel, her right to confront the witnesses arrayed against her, and her

right to be present at trial under both the Due Process Clause and Fed. R. Crim. P.

43. The only question is whether Garcia’s convictions should be reversed on

account of the error.

      We hold that Garcia’s convictions must be affirmed because the errors did

not affect Garcia’s substantial rights. There can be no question that Garcia failed to

preserve the errors at trial even though she had ample opportunity to do so. She

was given every chance to object and to secure some remedial relief from the trial

court but expressly declined to act. As a consequence, under well-established law

we must review the constitutional violations that occurred for plain error, not for

harmlessness beyond a reasonable doubt. What’s more, there is good reason in this

case to be punctilious in selecting the proper standard of review. The prejudice

analysis is by no means clear-cut and the standard by which we measure it could

well make all the difference.


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      We also reject Garcia’s other challenges to her convictions based on the

sufficiency of the indictment and claimed errors in the jury instructions. The

indictment was plainly adequate, and, to the extent that the district court may have

erred in how it charged the jury, these errors did not prejudice Garcia’s defense.

Finally, we hold that Garcia has similarly failed to establish prejudice under the

doctrine of cumulative error.

                                             I.

      A grand jury sitting in the Southern District of Florida indicted Lourdes

Margarita Garcia for conspiring from 1997 to September 2008 with her husband

Angel Garcia and others to defraud the United States by impeding the Internal

Revenue Service (IRS) in the assessment and collection of federal income taxes,

and to commit offenses against the United States by willfully making false

personal income tax returns for 1997 and 2001-2007, all in violation of 18 U.S.C. §

371, (Count One). Garcia and her husband were also charged with three

substantive counts of making and subscribing false personal income tax returns for

tax years 1997, 2006, and 2007, in violation of 26 U.S.C. § 7206(1) (Counts Two,

Three, and Four). Garcia’s husband, Angel, died before the case was tried.

      The evidence adduced at trial established that Garcia and her husband had

long been active as healthcare providers in South Florida. Beginning in the early

1990s, the couple operated various medical clinics and diagnostic centers, which


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generated substantial income that they reported to the IRS through 1996. After

business reversals and unsuccessful litigation in the Tax Court resulting in tax

deficiencies for 1992 and 1994-1996, the Garcias filed for protection in bankruptcy

court. Garcia continued to work as a physician’s assistant in her medical clinics.

She holds a medical degree that she obtained in the Dominican Republic -- the

country of her birth -- and a physician’s assistant license from the state of Florida.

Sometime later, beginning in 2001, the Garcias began to operate Global Medical

Group (Global), a new medical clinic based in Miami, first as a general partnership

and then as a limited liability company. For federal income tax purposes, as a

general partnership and then as a Subchapter S corporation, these were pass-

through entities, the profits of which were passed through to the Garcias and

reportable on their personal income tax returns.

      The evidence undisputedly established that Global generated substantial

income. In particular, it produced, at a minimum, $40,000 for 2001, $40,000 for

2002, $150,000 for 2003, $300,000 for 2004, $280,000 for 2005, and $1,986,882

for 2006. These figures were proven at trial through, among other things, the

introduction of extensive documentary evidence, including Global’s bank accounts

and records reflecting the receipt of large sums of money from various health

insurance companies and patients.




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      The evidence also established that very little of this income was reported on

the Garcias’ Form 1040 returns. Thus, for years 1997, 2001, 2002, 2003, 2004, and

2005 the Garcias reported no income. For 2006 they reported only $19,980 in

taxable income, and for 2007 they reported $29,111.

      Since Global was a Subchapter S corporation, not all of its gross income was

passed through and includable on the Garcias’ tax returns as personal income. Only

its net profits were classed as personal income. To determine how much of

Global’s income was passed through to the Garcias, the IRS conducted an

extensive examination of the monies flowing into and out of Global’s five bank

accounts. Going account by account and expenditure by expenditure, IRS

investigators analyzed the transactions and characterized some of them as being

personal in nature based on how the monies were expended. Trial exhibits,

including elaborate schedules of these expenditures showed the amounts associated

with each transaction, as well as, in some cases, who initiated the transaction.

Moreover, IRS agents examined various checks drawn on Global’s accounts and

testified at trial that many of them were signed by Garcia or made out to cover

expenses that benefited her and her family. These checks were also introduced in

evidence.

      Based, in part, on their analysis of personal expenditures drawn on Global’s

bank accounts, IRS investigators concluded that the Garcias’ personal income for


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2006 and 2007 was well above what they reported on their Form 1040 returns. For

2006, the investigators concluded that the Garcias had realized $403,309 in taxable

income, yielding a tax due of $114,332. And their taxable income for 2007 was

calculated as $452,779, with an additional tax due of $130,679. The United States

also introduced bankruptcy filings the Garcias made in 1997 establishing that they

had a taxable income of nearly $90,000 that year, even though their 1997 return

reported no income.

      The trial lasted some 10 days and included testimony taken from 26

witnesses and thousands of pages of documents. Of special importance for our

purposes are the testimony of and exhibits introduced through Angela Arevalo, an

IRS Revenue Agent who extensively investigated the Garcias’ financial dealings.

Arevalo was the 23rd and last witness called by the United States on the sixth day

of trial. Among other things, she testified about and the court received in evidence

Government Exhibit 6, a detailed schedule of expenditures prepared by the IRS

summarizing the payment of money drawn on Global’s bank accounts by and for

the personal benefit of the Garcias in 2006 and 2007. Because Global was a pass-

through entity, these personal expenditures should have been reported, the agent

offered, as income on their personal returns. They were not reported in 2006 and

2007. Plainly, Exhibit 6 was an important piece of evidence establishing that the

Garcias had underreported their taxable income and the taxes due and owing to the


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United States. Notably, the background information about Exhibit 6 was elicited on

direct examination from Arevalo while Garcia and her counsel were present,

shortly before the trial court recessed for lunch.

      After lunch, however, the prosecution resumed its examination of Arevalo

before the defense team had returned to the courtroom. During the course of this

three to ten minute period -- counsel having been absent for some three minutes

and the defendant for as much as ten minutes -- Arevalo highlighted ten specific

expenditures contained in Exhibit Six. The expenditures consisted of a debit

transaction for $832 paid to El Dorado Furniture; a check written by Lourdes

Garcia and made payable to her niece Sally Landron in the amount of $9,550; a

check for $9,310.50 made out to cash; another debit transaction for $2,500 payable

to El Dorado Furniture; a check made out to Lourdes Garcia for $9,000; a debit

card transaction for $464.71 payable to Macy’s; a debit card transaction for $1,750

payable to Victory Racing Engines; a check payable to Angel Garcia in the amount

of $45,000; a check in the amount of $3,260 payable to EMC Mortgage; and a

check in the amount of $56,261.53 made out to Williamson Cadillac for a Hummer

vehicle.

      These ten items represented a small sampling of nearly 400 personal

expenditures found in the exhibit. When added together, they represent

$137,928.74 worth of expenditures in an exhibit that accumulated a total of


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$1,561,854.19 in personal expenditures drawn on Global’s bank accounts in 2006

and 2007. During their absence, Arevalo also offered her lay opinion that one of

the checks disposing of funds drawn from the Global accounts that was signed “A.

Garcia” -- presumably short for Angel Garcia, the defendant’s deceased husband --

was actually signed by the defendant, Lourdes Margarita Garcia. In all, the missed

testimony takes up some six pages of the trial transcript, out of a total of 1,559

pages, and consists of 43 questions. Following this testimony, the prosecution

concluded its direct examination, and Garcia’s counsel, in the presence of the

defendant, began her cross-examination of Arevalo.

      Counsel did not raise any objection when she returned to the courtroom in

the middle of Arevalo’s testimony. Nor did she lodge an objection the following

trial day during an extensive sidebar colloquy called for the explicit purpose of

discussing the introduction of inculpatory evidence in the defense team’s absence.

Indeed, counsel expressly declined to state any objection at that time although

given an extended opportunity to do so.

      After the government rested, Garcia took the stand in her own defense. She

denied having any knowledge of Global’s or her family’s finances. Rather, she

explained, her husband took care of all of the family’s financial business. She

claimed ignorance of the amount of income generated by Global, and also testified

that she was unaware of the amounts reported on her tax returns, even though she


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admitted to signing some of them. Moreover, the appellant’s daughter and son also

testified in a similar vein, offering that the affairs of the business and the tax

returns were handled by their father, Angel Garcia.

      The jury returned a guilty verdict on all four counts. Garcia then moved for a

new trial on the grounds that the introduction of inculpatory evidence in their

absence violated the Fifth and Sixth Amendments to the Constitution. The district

court denied the motion, concluding that Garcia had voluntarily absented herself

from trial, and that, in any event, any error did not prejudice her defense.

      Thereafter, Garcia was sentenced to 51 months’ imprisonment on Count One

and 36 months’ imprisonment on Counts Two, Three, and Four -- all of the terms

to run concurrently. The district court also imposed three years of supervised

release and ordered Garcia to pay $455,683.74 in restitution to the IRS.

      This timely appeal followed.

                                               II.

      We necessarily begin our analysis with an examination of the proper

standard of review against which to measure the most serious errors raised in this

case: the absence of the defendant and her counsel for some three to ten minutes

during which inculpatory evidence was presented to the jury. For errors of

constitutional magnitude, the law offers three standards against which to measure

prejudice. The first one -- urged by appellant -- is the doctrine of structural error


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which requires us to presume prejudice in the face of certain, exceptional errors,

that erode the fundamental integrity of the entire trial process. Second, we may

measure constitutional mistakes against the standard of harmlessness beyond a

reasonable doubt as enunciated by the Supreme Court in Chapman v. California,

386 U.S. 18 (1967). This standard offers the defendant relief unless the United

States can establish harmlessness beyond a reasonable doubt. Finally, we may

review unpreserved error for plain error when the defendant has failed to preserve

the issue by unambiguously flagging the mistake and contemporaneously

objecting. 1 After careful review, on this record we conclude that plain error is the

template against which to measure prejudice. Under this standard, Garcia suffered

no prejudice.

                                                     A.

       The appellant argues that structural error applies and prejudice must be

presumed. Mrs. Garcia emphasizes that both she and her counsel were absent

during the introduction of inculpatory evidence, which makes the errors especially

egregious. However, it is clear from our decision in United States v. Roy, 855 F.3d

1133 (11th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 1279 (2018), that the


1
 A fourth possible measure of prejudice is a standard suggested, but not adopted by the Supreme
Court in Brecht v. Abrahamson, 507 U.S. 619, 638 n. 9 (1993) (“[I]n an unusual case, a
deliberate and especially egregious error of the trial type, or one that is combined with a pattern
of prosecutorial misconduct, might so infect the integrity of the proceeding as to warrant the
grant of habeas relief, even if it did not substantially influence the jury's verdict.”). We have
never recognized this standard -- known as “hybrid error” -- and decline to do so here.
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errors we face in this case cannot be treated as structural. In Roy, just like in this

case, we were confronted with a serious mistake that consisted of the introduction

of inculpatory evidence in the defense counsel’s absence. As we explained there,

the error was not structural, in no small measure, because the absence was so brief,

consisting of only seven minutes, or one half of one percent, of a trial that lasted

31.4 hours and because the offending questions and answers that were elicited in

counsel’s absence were reprised in even greater detail soon thereafter in counsel’s

presence. Id. at 1165-66.

      The error here is similar, at least in some ways, to the one in Roy, and in

some ways the error is an even less eligible candidate for being treated as

structural. While Garcia herself was absent from trial for between five to ten

minutes, her lawyer was absent for only three. This represents only .33535 percent

of the trial’s 49.7 hours. Moreover, we know almost exactly what questions and

answers were elicited in their absence. “This factor [] bear[s] heavily on whether to

presume prejudice or give the government an opportunity to show beyond a

reasonable doubt the lack of it, because in determining if the defense was

prejudiced because of something counsel missed, it helps a lot to know what

counsel missed.” Id. at 1162. Although the error here was in another sense more

serious than in Roy because both the defendant and her lawyer were absent, at least




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for a very small part of the testimony, that is not enough reason to treat the error as

structural.

       As we recognized in Roy -- and as the Supreme Court has held over and

over -- “the vast majority of constitutional errors that occur at a criminal trial,

including Sixth Amendment violations, should be examined for prejudicial effect

and those errors do not require reversal if they are harmless.” Id. at 1167. Only in

rare circumstances do we presume error, characterize it as structural, and eliminate

the requirement to establish actual prejudice. Johnson v. United States, 520 U.S.

461, 468 (1997) (“We have found structural errors only in a very limited class of

cases.”). Thus, for example, we presume prejudice for the complete denial of

counsel at a critical stage, and for other errors that “defy analysis by harmless-error

standards because they affect the framework within which the trial proceeds.”

United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (quotations and

alterations omitted). Structural errors are errors that violate constitutional

safeguards “whose precise effects are unmeasurable, but without which a criminal

trial cannot reliably serve its function.” Sullivan v. Louisiana, 508 U.S. 275, 281

(1993). These errors completely undermine the reliability of a trial to serve “as a

vehicle for determination of guilt or innocence.” Rose v. Clark, 478 U.S. 570, 577–

78 (1986).




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      Sound considerations of judicial policy show why we rarely treat an error as

structural. First, “[r]eversal for error, regardless of its effect on the judgment,

encourages litigants to abuse the judicial process and bestirs the public to ridicule

it.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (quoting Roger Traynor,

The Riddle of Harmless Error 50 (1970)). If all errors resulted in reversal, trials

would take place in the shadow of “a sporting theory of justice and a regime of

gotcha review.” Roy, 855 F.3d at 1142 (quotation omitted). What’s more,

automatic reversal is unnecessary in most cases. As the Supreme Court has

recognized, “given the myriad safeguards provided to assure a fair trial, and taking

into account the reality of the human fallibility of the participants, there can be no

such thing as an error-free, perfect trial, and [] the Constitution does not guarantee

such a trial.” United States v. Hasting, 461 U.S. 499, 508–09 (1983). “Because

errorless trials are not expected, much less required, harmless error analysis is the

rule, not the exception.” Roy, 855 F.3d at 1143. After all, the “central purpose of a

criminal trial is to decide the factual question of the defendant's guilt or

innocence,” Van Arsdall, 475 U.S. at 681, which means that, if the error can be

“quantitatively assessed in the context of other evidence presented in order to

determine whether its admission [was] harmless,” we need not presume prejudice

but rather can apply the harmless error rule. Arizona v. Fulminante, 499 U.S. 279,




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308 (1991). Further, doing so allows us to “conserv[e] scarce judicial resources by

avoiding pointless retrials.” Roy, 855 F.3d at 1142.

      Moreover, to suggest that harmless error review is entirely toothless, or that

treating an error as structural is the only way to afford a defendant meaningful

relief, ignores the important role the rule plays in ensuring that defendants receive

a fair and accurate trial. That harmless error review acts as an adequate safeguard

in most cases should be apparent from the fact that the Supreme Court has applied

it to a wide variety of violations of fundamental constitutional rights. See, e.g.,

Clemons v. Mississippi, 494 U.S. 738, 752-754 (1990) (unconstitutionally

overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v.

Texas, 486 U.S. 249 (1988) (admission of evidence at the sentencing stage of a

capital case in violation of the Sixth Amendment Counsel Clause); Carella v.

California, 491 U.S. 263, 266 (1989) (jury instruction containing an erroneous

conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501-504 (1987) (jury

instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570

(1986) (jury instruction containing an erroneous rebuttable presumption); Crane v.

Kentucky, 476 U.S. 683, 691 (1986) (erroneous exclusion of defendant’s testimony

regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S.

673 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in

violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464


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U.S. 114, 117-118 & n. 2 (1983) (denial of a defendant’s right to be present at

trial); United States v. Hasting, 461 U.S. 499 (1983) (improper comment on

defendant’s silence at trial, in violation of the Fifth Amendment Self–Incrimination

Clause); Hopper v. Evans, 456 U.S. 605 (1982) (statute improperly forbidding trial

court’s giving a jury instruction on a lesser included offense in a capital case in

violation of the Due Process Clause); Kentucky v. Whorton, 441 U.S. 786 (1979)

(failure to instruct the jury on the presumption of innocence); Moore v. Illinois,

434 U.S. 220, 232 (1977) (admission of identification evidence in violation of the

Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231-

232 (1973) (admission of the out-of-court statement of a nontestifying codefendant

in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright, 407

U.S. 371 (1972) (confession obtained in violation of Massiah v. United States, 377

U.S. 201 (1964)); Chambers v. Maroney, 399 U.S. 42, 52-53 (1970) (admission of

evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama,

399 U.S. 1, 10-11 (1970) (denial of counsel at a preliminary hearing in violation of

the Sixth Amendment Confrontation Clause). 2 It is therefore apparent that

structural error generally is neither essential, nor even the optimal way of dealing

with most trial mistakes.




2
    This list is drawn from Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
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      This case illustrates the point. An examination of the entire record does not

remotely suggest the complete denial of counsel or the breakdown of the trial

process. Nor do the errors defy analysis because their impact is unmeasurable.

These mistakes, like so many others, can be quantitatively assessed when measured

against the other evidence presented. Although the errors cannot be treated as

structural, that by no means decides the outcome. While Garcia ultimately cannot

carry her burden under the plain error standard, the outcome may well have been

different if trial counsel had preserved the errors. Harmless error review is not a

dead end. The rule, like the judicial process itself, is practical and perfectly

workable.

                                             B.

      The constitutional errors here are trial errors. Thus, normally, we would ask

whether the government had met its burden of establishing that the errors were

harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24

(1967). But if a defendant fails to lodge a timely objection, we are required to

apply plain error review instead. See, e.g., United States v. Turner, 474 F.3d 1265,

1275 (11th Cir. 2007) (“Normally, we would review issues concerning a district

court’s evidentiary rulings . . . for harmlessness beyond a reasonable doubt . . . .

However, it is well-settled that where, as here, a defendant fails to preserve an

evidentiary ruling by contemporaneously objecting, our review is only for plain


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error.”) (citations omitted); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005) (explaining that, because the defendant did not preserve a sentencing

issue by objecting in the district court, review was only for plain error); United

States v. Humphrey, 164 F.3d 585, 587 (11th Cir. 1999) (“The appropriate

standard of review, given [the defendant’s] failure to object in the district court . . .

is plain error.”).

       Unlike harmless error review, “[u]nder plain error review, which is

authorized by Fed.R.Crim.P. 52(b), federal appellate courts have only ‘a limited

power to correct errors that were forfeited because [they were] not timely raised in

[the] district court.’” Rodriguez, 398 F.3d at 1298 (quoting United States v. Olano,

507 U.S. 725, 731 (1993)). “Although a rigid and undeviating judicially declared

practice under which courts of review would invariably and under all

circumstances decline to consider all questions which had not previously been

specifically urged would be out of harmony with the rules of fundamental justice,

the authority created by Rule 52(b) is circumscribed.” Olano, 507 U.S. at 732

(quotation and citation omitted and alterations adopted).

       Thus, an appellate court conducting plain error review may only correct an

unpreserved claim if the defendant proves “(1) error, (2) that is plain, and (3) that

affects substantial rights. If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error


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seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Rodriguez, 398 F.3d at 1298 (quotations and citations omitted).

Notably, this standard differs from harmless error review in important respects.

Turner, 474 F.3d at 1275 (“Plain-error review differs from harmless-error review

in both purpose and scope.”). For starters, relief under plain error review is

discretionary, meaning that, even if a defendant establishes prejudice, her

convictions might still be affirmed. United States v. Vonn, 535 U.S. 55, 63 (2002).

Recently, in Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018), the Supreme

Court elaborated on when it is appropriate to exercise such discretion, observing

that “[i]t is crucial in maintaining public perception of fairness and integrity in the

justice system that courts exhibit regard for fundamental rights and respect for

prisoners as people,” and that errors that demonstrate a disregard for those rights

warrant reversal where they satisfy the other requirements of plain error review. Id.

at 1907 (quotations omitted). In addition, unlike harmless error -- where the

government carries the burden -- the onus of establishing prejudice under plain

error rests with the defendant. United States v. Monroe, 353 F.3d 1346, 1352 (11th

Cir. 2003).

      The measure of prejudice under plain error review -- the third prong of the

plain error test -- “requires that an error have affected substantial rights, which

almost always requires that the error must have affected the outcome of the district


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court proceedings. The standard for showing that is the familiar reasonable

probability of a different result formulation.” Rodriguez, 398 F.3d at 1299

(quotations and citations omitted). This means that to establish prejudice on plain

error, the defendant must show there is a reasonable probability that, but for the

error, a different outcome would have occurred; and a reasonable probability is a

probability “sufficient to undermine confidence in the outcome.” United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004) (citing Strickland v. Washington, 466

U.S. 668, 694 (1984)). We make this calculus “by weighing the record as a whole,

examining the facts, the trial context of the error, and the prejudice created thereby

as juxtaposed against the strength of the evidence of defendant's guilt.” United

States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (quotations and citations

omitted).

      The burden placed on the defendant under plain error is heavy. As we have

said, “the plain error test is difficult to meet, and in particular, the burden of

showing prejudice to meet the third-prong requirement is anything but easy.”

United States v. Shelton, 400 F.3d 1325, 1331–32 (11th Cir. 2005) (quotations

omitted). It is, quite simply, a far less defendant-friendly standard than harmless

error. See Dominguez Benitez, 542 U.S. at 86-87 (Scalia, J., concurring).

      The heavy burden imposed on the defendant serves to enforce the

“contemporaneous objection rule” -- the basic requirement that parties assert


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timely objections in order to preserve claims of error. See Rodriguez, 398 F.3d at

1298. “The purpose of [the contemporaneous objection] rule is to assure that the

trial judge makes an informed decision, and to allow the judge and opposing

counsel to take whatever corrective action is needed.” United States v. Astling, 733

F.2d 1446, 1459 (11th Cir. 1984). The rule aims to provide the district court with

an opportunity to prevent or correct error, and thus avoid the costs of reversal and

retrial. Turner, 474 F.3d at 1275. It “fosters finality of judgment and deters

‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if

the first one misses.” United States v. Rodriguez, 627 F.3d 1372, 1379 (11th Cir.

2010). Requiring timely objections also promotes respect for a criminal trial as a

“decisive and portentous event,” and enables the district court to develop a full

record on the issue. Id.

      The daunting hurdles erected under plain error review are imposed for

powerful reasons. Without them, a defendant would be free to sleep on his rights at

trial, and ignore his duty in our adversarial system to help the district court police

the trial process in order to ensure fair and accurate fact-finding. See United States

v. Lopez-Pena, 912 F.2d 1542, 1546 (1st Cir. 1989) (“Ordinarily, the law ministers

to the vigilant, not to those who sleep upon their rights.”). Under our common law

tradition of trial by adversarial testing, generally it is not the role of the judge to

step in and correct a party’s mistake or do her work for her. See McNeil v.


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Wisconsin, 501 U.S. 171, 181 n. 2 (1991) (“What makes a system adversarial

rather than inquisitorial is… the presence of a judge who does not (as an inquisitor

does) conduct the factual and legal investigation himself, but instead decides on the

basis of facts and arguments pro and con adduced by the parties.”); Sanchez-

Llamas v. Oregon, 548 U.S. 331, 357 (2006) (“In an inquisitorial system, the

failure to raise a legal error can in part be attributed to the magistrate, and thus to

the state itself. In our system, however, the responsibility for failing to raise an

issue generally rests with the parties themselves.”). Indeed, if a litigant doesn’t

think an error is important enough to lodge an objection, it is less likely the trial

judge will disagree and take action on his own. It is, therefore, a principle central

to our system that a defendant who through laxity or, worse, deliberate

gamesmanship fails to preserve an error at trial cannot expect relief on appeal

absent a robust showing of prejudice.

      Unlike in Roy, here we cannot indulge the assumption that the proper

standard to apply in reviewing the error is harmlessness beyond a reasonable

doubt. In Roy, we applied the harmless error rule because, among other things, it

was unclear from the record whether defense counsel took any ameliorative actions

after returning to the courtroom. Roy, 855 F.3d at 1141-42. We put it this way:

“[a]bsent any knowledge of why defense counsel was absent, whether the AUSA

or judge realized he was not present, about what counsel realized or didn't when he


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walked in late, and about whether he took some ameliorative action not reflected in

the transcript, we will not apply the plain error rule or remand for any findings

necessary to decide if it is applicable. Instead, in order to simplify our analysis, we

will indulge the assumption that the plain error rule does not apply even though

there was no contemporaneous objection.” Id. at 1141. We did not know whether

defense counsel had preserved the error, so we gave him the benefit of the doubt

on appeal. Here, in sharp contrast, we know why the defendant and her counsel

were absent and we know with certainty that Garcia failed to timely object to the

errors notwithstanding having been given every opportunity to do so. Garcia and

her counsel were absent for only a few minutes during the government’s case-in-

chief, and her counsel in fact returned to the courtroom at some point during the

government’s direct examination and while Garcia was still absent. Yet the record

shows that no objection was made at any point during Arevalo’s testimony, either

upon defense counsel’s return or Garcia’s appearance.

      What’s more, and far more significant, at the start of the next trial day the

government requested a sidebar to discuss the error. During the colloquy the

government reviewed in detail what had happened. The prosecutor explained that

the court had resumed on time after the Friday lunch break, but that the defendant

and her lawyer were not there because they were caught up in a big crowd at the

security station in the courthouse. The prosecutor suggested the court read back the


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testimony that had occurred in their absence so counsel could consider the

evidence and “state her position” before the United States rested its case-in-chief.

Notably, the defendant did not join the request and the district court observed that

defense counsel could order the transcript if she wanted to. In fact, this was the

second time during the trial that the defendant and her counsel were absent after a

lunch break when court was scheduled to resume. The first time they notified the

court before trial resumed. This time they did not.

      After suggesting that the defendant had voluntarily absented herself this

time, the court, “out of an abundance of caution,” invited the defendant’s lawyer to

“order the transcript and review it,” and welcomed the exploration of any “issue”

of concern. Finally, the prosecutor bluntly asked defense counsel: “You are not

going to state an objection at this point?” Defense counsel replied: “Not at this

time, no.” At no point during this extended sidebar (or, in fact, at any time during

the balance of the trial) did defense counsel offer any objection, flag any issue, or

ask the trial court for any remedial relief. The record could not be clearer that

counsel deliberately chose to say nothing and raise no objection.

      To be sure, following her conviction, Garcia moved for a new trial on these

grounds. Yet that was plainly insufficient to preserve her objection. First, Fed. R.

Crim. P. 51(b) unambiguously requires parties to object “when the court ruling or

order is made or sought” in order to properly preserve claims of error.


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Furthermore, the motion came too late to allow the district court to correct the error

and avert an “unnecessary retrial.” Rodriguez, 627 F.3d at 1379; see also United

States v. Nixon, 918 F.2d 895, 904–05 (11th Cir. 1990) (defendant’s

postconviction motion for mistrial did not suffice to preserve a claim of error,

rendering plain error review applicable on appeal).

      Had Garcia objected promptly, she would have afforded the trial court an

opportunity to remediate or cure the errors. Thus, for example, if asked, the district

court may have ordered the government to redo the missed portion of Arevalo’s

direct examination in the presence of the defendant and her counsel. Or, if

requested by counsel, the district court may have had the offending testimony re-

read. Or, perhaps, the district court may have struck from the record the missing

testimony, and instructed the jury to disregard it. Or, finally, defense counsel could

have moved for a mistrial. Instead, counsel sat on her hands and said nothing, and

in the absence of any objections the district court had less reason to act.

      Garcia’s conscious failure to object must mean, if anything, that the error

was unpreserved, and, therefore, should be reviewed only for plain error. The

contemporaneous objection rule was designed for precisely this kind of problem.

The trial of human beings by human beings is necessarily imperfect. Mistakes are

made. A prompt objection could have ameliorated or solved the problem.




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Accordingly, the assumption in Roy that the proper standard of review should be

harmlessness beyond a reasonable doubt is unwarranted on the facts here.3

                                                      C.

       Despite palpable constitutional errors, Garcia’s substantial rights were

unaffected and she has failed to carry her burden on plain error review.

       As for Count Two, the evidence elicited in the absence of Garcia and her

counsel is largely irrelevant. Count Two charged Garcia with filing a false Form

1040 personal income tax return for 1997. To prove the charge, the government

introduced a copy of a 1997 tax return, signed by Garcia, that reported $0.00 in

adjusted gross income; monthly financial reports signed and filed by Garcia under

penalty of perjury in bankruptcy court dating back to 1997 and showing that she

and her husband actually drew an income of nearly $90,000 for a six month period


3
  The concurring opinion suggests that, under Roy, in order to determine whether plain error
review applies, we are required to consider not only whether defense counsel had a real
opportunity to object and did not do so, but also the reasons for her absence from trial and
whether her absence went unnoticed by the Government or the district court. But it is firmly
established that the Court applies plain error review “[w]hen a defendant . . . fails to object” once
the opportunity arises, regardless of why the unpreserved error was committed or whether the
Government or the district court were aware of it. United States v. Monroe, 353 F.3d 1346, 1349
(11th Cir. 2003); see also 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.”).
Nothing in Roy remotely suggests that the plain error doctrine found in Fed.R.Crim. P. 51(b),
explained by the Supreme Court in Olano and amplified by our Court in Rodriguez, would not
apply where a defendant failed to object after having been given every opportunity to do so. Nor
is there anything in Roy that purported to limit the application of Fed. R. Crim. 51(b). Rather,
Roy applied harmless error review because, among other things, the record was unclear as to
whether defense counsel objected or had the opportunity to object. Roy, 855 F.3d at 1141. Here,
where the record is unequivocal that Garcia did not object when she could have, indeed, when
she was expressly invited to do so, plain error review applies.
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in 1997; and copies of transcripts from a creditors’ meeting in 1998 revealing that

Garcia, rather than her husband, answered most of the questions asked by their

creditors. Further bolstering the inference that Garcia was deeply involved in her

family’s finances, and, therefore, was fully aware that the income reported on her

1997 tax return was false, the government presented the testimony of Lynn

Gelman, Garcia’s bankruptcy attorney. Gelman offered that she told Garcia at the

time of the bankruptcy that bankruptcy filings were made under penalty of perjury,

and that she went over the various financial forms with Garcia in detail. Notably,

the strength of this evidence is entirely unaffected by the missed testimony, which,

again, only summarized expenditures made and checks signed in taxable years

2006 and 2007. As a result, there was no obvious prejudice on Count Two arising

from their absence.

      However, Counts One, Three, and Four present closer questions. As we have

explained, these counts charged Lourdes Margarita Garcia first with conspiring

from 1997 through mid-September 2008, with Angel Garcia and others, to defraud

the IRS in the assessment and collection of taxes, and to commit offenses against

the United States, in violation of 26 U.S.C. § 7206(1) by making false income tax

returns in 1997 and continuing through mid-September 2008, all in violation of 18

U.S.C. § 371 (Count One). Garcia was also charged substantively with filing false

tax returns for taxable years 2006 (Count Three) and 2007 (Count Four).


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      Because the missed testimony was important both in helping to establish the

falsity of the 2006 and 2007 returns, and in showing that Garcia was intimately

involved in the finances of her family and her business, and therefore was a

knowing participant in the conspiracy, it is surely possible that the errors exerted

some influence over the jury’s deliberations on these counts. Nonetheless, a

number of powerful considerations militate against finding prejudice under plain

error review.

      First, Revenue Agent Arevalo’s testimony, while arguably important, was

not especially pertinent to the key issue disputed at trial -- namely whether Garcia

possessed the requisite mens rea. In addition, the missed testimony was in many

ways cumulative of evidence that had been introduced earlier and in their presence.

Moreover, even leaving aside Arevalo’s testimony, the government’s case against

Garcia was strong. Furthermore, although absent for a short period of Arevalo’s

testimony, Garcia’s lawyer had ample opportunity to engage in an extensive cross-

examination of the government’s final witness. Finally, just like in Roy, the

absence of Garcia and her lawyer was brief, here amounting to only three tenths of

one percent of the entire trial.

      As for the first point, although the missed testimony was important since it

helped show that Garcia had realized substantial unreported income in 2006 and

2007, and she was fully aware Global had generated the income, its significance


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was diminished because neither of these facts were actively contested at trial. As

Garcia’s counsel acknowledged in closing argument, Garcia did not deny or in any

way contest that Global had made money (in fact lots of money); that she knew it

made money; and that taxes were owed to the IRS. Indeed, Garcia’s lawyer asked

her point blank at trial, “Do you agree, after seeing all the evidence in this case, do

agree that there are taxes that are owed?” To this Garcia simply responded, “Yes.”

Rather, the only element of the charged crimes challenged was whether Garcia

knowingly, willfully and intentionally assisted in the preparation of false tax

returns. Garcia and her children testified that Garcia’s husband (Angel) handled all

financial matters for the family, including filing their taxes, and that Garcia took no

responsibility for any of these financial matters. Quite simply Garcia’s defense

rested entirely on her claim that she was ignorant of her husband’s scheme to file

false tax returns and that at no point did she knowingly assist him in that unlawful

undertaking.

      Garcia even admitted to signing some of the false returns at trial. In

particular, she admitted to signing a 2006 return that falsely reported $17,858 in

adjusted gross income, and the return for tax year 2007 that falsely reported

$29,110 in adjusted gross income and which formed the basis of the charge in

Count Four. Far from denying that the returns were false or that she had signed

some of them, Garcia’s defense was simply that neither her accountant, Joseph


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Villate, nor her husband had ever explained to her what she was signing; that she

did not review the returns on her own; and that she was therefore unaware of what

she was signing. What’s more, far from contesting the ten specific expenditures

highlighted from Exhibit 6, Garcia introduced evidence of some of the very same

expenditures herself earlier in the trial. In particular, during her cross-examination

of IRS Special Agent McNeal, Garcia’s lawyer introduced exhibits containing four

of the same transactions that were listed in Government Exhibit 6.

      A review of the evidence offered, and the arguments Garcia’s counsel

mounted, establishes that the missing testimony was not the fulcrum on which the

jury’s deliberations likely turned. To the extent that Arevalo’s testimony during the

defense team’s absence helped make these points, it was undisputed.

      In the second place, the claim of prejudice is undermined because the missed

testimony was in many ways cumulative. For one thing, Government Exhibit 6 had

already been admitted without objection before the lunch recess. Furthermore,

Arevalo also explained, before the lunch break, what was in Exhibit 6, how she

compiled it, and, most importantly, what its ultimate relevance was. In particular,

Arevalo said that the exhibit was created in order to establish how corporate

income generated by Global was disposed of by Lourdes Margarita Garcia for

personal purposes. Arevalo also explained that the expenditures listed in the

schedule were generated from an analysis of checks either written by Garcia or for


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her benefit, as well as debit transactions that were drawn on Global’s accounts.

Moreover, Arevalo also told the jury that the expenditures for 2006 added up to

$1,039,668.69, an amount far in excess of the $19,980 reported on Garcia’s 2006

personal income tax return.

      It is, therefore, apparent that most of Arevalo’s testimony about Exhibit 6

was revealed to the jury in the presence of the defendant and her counsel. That’s

not to say the missed testimony was unimportant. Indeed, the six pages of

offending testimony undoubtedly helped the jury better understand the exhibit by

breaking it down into a few specific and readily understandable items. But the

point remains that many of the most important pieces of testimony relating to

Exhibit 6 were presented before the lunch recess. This further diminished the

claimed prejudice.

      Moreover, to the extent Arevalo’s testimony crystallized how Garcia spent

large chunks of unreported income, any prejudice was reduced still further because

Arevalo offered similar testimony in their presence. Thus, for example, for tax year

2005 Arevalo told the jury that many expenditures were made by or for the benefit

of Garcia for such personal items as expenses incurred at Burger King, Holiday

Video, Cracker Barrel, Walgreens, Exxon, Imperial Bakery, and at an animal

clinic. Some of the examples of personal expenditures drawn in 2005, such as

payments to Macy’s and for her mortgage, were virtually identical to examples


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highlighted during their absence. Arevalo offered similar examples for 2004 as

well, observing that Global’s bank accounts were used to pay for expenses incurred

at Los Ranchos Restaurant, Macy’s, Walgreens, Federal Express, Toys “R” Us,

and Quesada Auto Repair. Not only did Arevalo offer this kind of testimony in

their presence, but so did Agent McNeal, who highlighted specific checks written

by Garcia and drawn on Global bank accounts that the IRS regarded as being

personal in nature.

      Some of the ten items were actually discussed at other points in trial. Three

of them in particular were highlighted in their presence. Thus, McNeal testified

about two of the same checks that Arevalo had discussed during the missed

testimony. McNeal identified and testified about checks signed by Garcia in the

amounts of $9,310.50 and $9,000 drawn on the Global’s bank accounts. These are

the same checks that Arevalo would highlight later in their absence. Similarly,

Arevalo’s testimony highlighting a check made payable to Williamson Cadillac for

a Hummer vehicle was also in some ways cumulative of testimony about the

Hummer offered throughout the trial.

      Perhaps more importantly, Arevalo’s lay opinion testimony regarding the

signature on one of the checks she highlighted in the absence of the defendant and

her counsel also was largely cumulative. Arevalo’s view that Garcia had signed

some of the checks drawn on the Global accounts was important since it helped


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establish that Garcia was not as ignorant about financial matters as she had

claimed; and, indeed, that she was intimately involved in managing money flowing

into and out of the corporation. The issue was contested at trial since Garcia denied

writing many of the checks attributed to her, including at least one that Arevalo

highlighted in their absence. While the testimony about Garcia’s signature was

important, extensive testimony about Garcia’s signatures was adduced earlier in

the trial. Thus, by way of example, McNeal offered extensive lay opinion

testimony about Garcia’s signatures highlighting check after check drawn on the

Global accounts and purportedly signed by Garcia. McNeal also identified the

signatures on some of the false tax returns as being Garcia’s. Similarly, Arevalo

offered extensive testimony before the lunch break identifying the defendant’s

signatures on various checks.

      Beyond all of that, the trial errors did not affect the defendant’s substantial

rights because in many ways the government’s case was strong. For starters, the

government proved that Garcia’s business, Global Medical Group, had received

substantial income that flowed through its bank accounts. And the government

introduced Global’s tax returns in order to show that the business failed to report

most of this income.

      The government also sought to prove that Garcia was financially

sophisticated and aware of the substantial income generated by Global, by offering


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a body of evidence showing Garcia’s intimate involvement in the business. Thus

on Global’s 2006 and 2007 tax returns, Garcia was listed as the “Tax Matters

Partner” and as 100 percent owner of the business. Garcia also engaged in a variety

of business transactions on behalf of Global, including negotiating a lease.

Moreoever, testimony taken from a physician who sometimes assisted Garcia with

her medical practice also revealed that Garcia handled the billing of Global’s

patients and the submission of insurance payments to Global. And when Global

hired a new doctor to serve as a supervisor at a new clinic, Garcia personally

handled the doctor’s compensation. Testimony from one of Global’s patients also

revealed Garcia’s intimate involvement in Global’s billing practices, and testimony

from another of Garcia’s business associates suggested that Garcia received

invoices showing large sums of money paid to Global.

      That much of this income should have been, but was not declared as

personal income was established beyond any reasonable doubt. Thus, as we

already noted, the Garcias’ 2006 return reported only $19,980 in income, while

Arevalo testified, and Government Exhibit 4 helped establish that the Garcias had a

taxable personal income of $403,309, and a tax due of $114,332 for that calendar

year. Similarly, Garcia’s 2007 tax return reported only $29,111 in personal income,

while the amount of taxable income for 2007 was actually $452,779 with an

additional tax due of $130,679


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        Finally, the jury got to consider the testimony of the defendant who

vigorously denied knowingly defrauding the United States. A defendant’s

testimony is substantive evidence that a jury may -- and indeed in this case did

consider and reject. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)

(“[A] statement by a defendant, if disbelieved by the jury, may be considered

as substantive evidence of the defendant's guilt.”). As the Supreme Court has

explained, a defendant who chooses to take the stand runs “the risk that in so doing

he will bolster the Government case enough for it to support a verdict of guilty.”

McGautha v. California, 402 U.S. 183, 215 (1971), reh’g denied by McGautha v.

California, 406 U.S. 978 (1972), and vacated in part on other grounds sub

nom. Crampton v. Ohio, 408 U.S. 941 (1972). An explanation or denial offered by

a defendant at trial that the jury finds implausible or false may “form a sufficient

basis to allow the jury to find that the defendant had the requisite guilty

knowledge.” United States v. Eley, 723 F.2d 1522, 1525 (11th Cir. 1984). Garcia’s

decision to testify at trial thus, ironically, added further weight to the prosecution’s

case.

        This corpus of evidence, when considered in concert, reveals that there were

large sums of money pouring into the Global bank accounts that went unreported

on the Global returns; that Garcia was aware of the money being earned by Global;

that she used much of the money for her own personal expenditures; and that she


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did not report any of this as personal income on her tax returns. The inference that

Garcia knowingly filed fraudulent tax returns for tax years 2006 and 2007 is clear.

Even more importantly, the vast majority of the evidence supporting these

conclusions had little to do with the testimony Arevalo offered in their absence.

The missing testimony had nothing to do with showing that Global generated large

amounts of unreported income. And it had less to do with showing that Garcia was

likely aware that the returns she signed were false. The sums represented by the ten

items highlighted in the missed testimony were a smaller part of the unreported

income established at trial. To the extent the missed testimony helped establish that

Garcia knew full well what she was doing when she signed the false returns, it was

a smaller part of a much larger fabric supporting the jury’s inferences about

Garcia’s state of mind.

      We add, defense counsel extensively cross-examined Arevalo about the

information contained in Exhibit 6. Indeed, the cross-examination of Arevalo ran

some 45 pages in the trial transcript. Moreover, during the course of that cross-

examination defense counsel challenged Arevalo on, among other things, whether

specific checks included in the exhibit’s schedule were actually signed by Garcia

or connected to her in any way. She also vigorously cross-examined Arevalo about

one of the specific items discussed in the missed testimony, challenging whether it




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was accurate to classify the Hummer as a personal expenditure. This too weighs

against a finding of prejudice.

      We are convinced that Garcia has not satisfied the third prong of plain error

review. The cumulative nature of the missed testimony, the strength of the

government’s overall case, the fact that the missed testimony did not relate to the

issue most hotly disputed at trial, the brevity of the missed testimony, and the

robust cross-examination of Arevalo strongly indicate that Garcia’s substantial

rights were unaffected by the errors. Demonstrating a reasonable probability that,

but for the error, the outcome would have been different is a heavy burden; Garcia

has failed to carry it on appeal.

                                             D.

      This assessment should not be taken to mean that the question of prejudice is

an easy one. None of the plain error analysis means that the government has

established harmlessness beyond a reasonable doubt. There are, after all, a number

of important considerations on the other side of the ledger.

      We begin with the nature of the standard itself. The barrier set up by

Chapman -- that an error is reversible unless we are satisfied beyond a reasonable

doubt that it did not influence the jury -- is formidable. O'Neal v. McAninch, 513

U.S. 432, 438 (1995). As we have explained many times, “beyond a reasonable

doubt” is an exacting measure of certitude, requiring “proof of such a convincing


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character that [a person] would be willing to rely and act upon it without hesitation

in the most important of [his] own affairs.” United States v. James, 642 F.3d 1333,

1336 (11th Cir. 2011). For this reason, the Chapman standard is the most difficult

standard of harmlessness that the government can be required to satisfy. See

Dominguez Benitez, 542 U.S. at 86-87 (Scalia, J., concurring); see also United

States v. Lane, 474 U.S. 438, 460–61 (1986) (“Thus, the test for harmless

constitutional error is stricter than its statutory counterpart.”). To carry its burden,

the government must show that there is no “reasonable possibility that the [error]

complained of might have contributed to the conviction.” Lamarca v. Sec’y, Dep't

of Corr., 568 F.3d 929, 943 (11th Cir. 2009). Notably, unlike plain error, this

standard does not focus on whether, but-for the error, the outcome would have

been different. Van Arsdall, 475 U.S. at 680; see also United States v. Guzman,

167 F.3d 1350, 1353 (11th Cir. 1999) (explaining that, unlike other forms of

prejudice analysis, Chapman does not require a showing of “actual prejudice”).

Rather, it asks only “if there is any reasonable likelihood that the [error] could

have affected the judgment of the jury.” United States v. Alzate, 47 F.3d 1103,

1110 (11th Cir. 1995); see also United States v. Rivera Pedin, 861 F.2d 1522, 1529

n. 13 (11th Cir. 1988); Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1279 n. 4 (11th

Cir. 2005); Carr v. Schofield, 364 F.3d 1246, 1255 (11th Cir. 2004). Unless we are

satisfied, beyond a reasonable doubt, that the error was “so unimportant and


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insignificant that [it] may, consistent with the Federal Constitution, be deemed

harmless,” we may not affirm. Chapman, 386 U.S. at 22.

      When measured against this taxing standard, it is notable that, unlike in Roy,

the missed testimony here was the final piece of testimony offered from the

government’s last witness in a long and complex tax fraud trial. Moreover, the

witness was summarizing and explicating a dense government exhibit that showed

some 400 personal expenditures made by Garcia or for her benefit drawn on the

corporate bank accounts. Arevalo’s summary testimony about ten personal

expenditures that were otherwise deeply embedded in a lengthy exhibit that ran 14

pages long obviously served some significant purposes. For one, as we’ve already

observed, the testimony helped the jury understand a complicated exhibit by

breaking it down into illustrative components. Arevalo’s testimony also arguably

helped crystallize for the jury the criminality of Garcia’s conduct by offering

concrete examples (amounting to almost $138,000) about how Garcia spent her

unreported income.

      Moreover, the testimony helped establish Garcia’s knowing and willful

participation in both the conspiracy and in two of the substantive false filing counts

because it revealed her intricate involvement with Global’s bank accounts,

including evidence that she herself had written some of the checks (and large ones

at that) drawn on the corporate accounts. Arevalo’s testimony, like Exhibit 6,


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helped establish that the income reported on Garcia’s personal 2006 and 2007

income tax returns was substantially lower than Garcia’s actual income, and thus

that the returns were false. The testimony served as the final, climactic moment of

the government’s presentation, which also suggests it may have had an impact on

the jury. Indeed it should come as no surprise that the United States offered this

summary testimony at the very end of its last witness’s testimony. In short, while

the missing testimony was brief in relation to the whole, it was consequential and

arguably exerted an influence over the trial.

      In addition, the errors Garcia sustained are different in some ways from the

error the defendant sustained in Roy. Here, both the defendant and her lawyer were

absent and the evidence was not re-presented by the government. With the

defendant gone, her counsel was deprived of any aid the defendant might have

offered in assessing and responding to Arevalo’s testimony. Thus, had she been

present, Garcia might well have told her lawyer that the signature Arevalo

identified as being Garcia’s was not in fact her own. See Snyder v. Massachusetts,

291 U.S. 97, 106 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S.

1 (1964) (“[D]efense may be made easier if the accused is permitted to be present

at the examination of jurors or the summing up of counsel, for it will be in his

power, if present, to give advice or suggestion or even to supersede his lawyers

altogether and conduct the trial himself.”).


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      Also unlike in Roy, the missed testimony here was never reprised in the

defense team’s presence. This may have hampered defense counsel’s cross-

examination of Arevalo and impaired her ability to decide whether Garcia should

have taken the stand. As for the first point, the Supreme Court “has emphasized

that a primary interest secured by the Confrontation Clause is the right of cross-

examination.” Kentucky v. Stincer, 482 U.S. 730, 736 (1987) (quotation omitted

and alteration adopted). What’s more, the presence of the defendant and her

counsel during the direct examination of an adverse witness is part of what makes

the right to face-to-face confrontation an essential guarantor of effective cross-

examination. See United States v. Novaton, 271 F.3d 968, 997 (11th Cir. 2001);

see also Stincer, 482 U.S. at 745 (“[D]ue process clearly requires that a defendant

be allowed to be present to the extent that a fair and just hearing would be thwarted

by his absence.”) (quotation omitted). Without being present during a witness’s

direct examination, the defense team has no way of knowing what they can and

should challenge the witness on during cross-examination. See United States v.

Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017) (“Cross- examination should not go

beyond the subject matter of the direct examination and matters affecting the

witness's credibility.”).

      Additionally, the decision by a criminal defendant to take the stand is

fraught with danger and is always a difficult one to make. As the Supreme Court


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has observed, the determination “carries with it serious risks of impeachment and

cross-examination.” Brooks v. Tennessee, 406 U.S. 605, 609 (1972). Because the

decision carries palpable risks, a defendant should not be required to make it “until

upon a full survey of all the case as developed by the state, and met by witnesses

on his own behalf[,] [h]e may intelligently weigh the advantages and disadvantages

of his situation, and, thus advised, determine how to act.” Id. at 608 (quoting Bell

v. State, 66 Miss. 192, 5 So. 389, 389 (1889)). Here, Garcia’s decision to take the

stand was made without the benefit of knowing all of the evidence the prosecution

had put on in the final, climactic moments of the case.

      We offer no conclusion one way or another on harmless error. It is enough to

observe for our purposes that the question of prejudice is a closer one when

measured against the template of harmlessness beyond a reasonable doubt. But in

this case, the defendant failed to preserve the error when she had every opportunity

to do so. The trial court should have been given the chance to address the errors. In

consequence, we only review the matter for plain error.

                                         III.

      Garcia raises three additional challenges to her convictions. In particular, she

urges that the indictment failed to include all of the necessary elements to charge

her with joining in a Klein conspiracy in violation of 18 U.S.C. § 371. She also

takes issue with a number of the district court’s jury instructions, and invokes the


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cumulative error doctrine to argue that the sum of the district court’s errors

warrants reversal even if each on its own did not prejudice her defense. Because

none of these claimed errors were raised or preserved in the district court, we

review them for plain error. Measured against this standard Garcia cannot prevail.

                                          A.

      We review the legal sufficiency of an indictment de novo. United States v.

Jordan, 582 F.3d 1239, 1245 (11th Cir. 2009) (per curiam). “A criminal conviction

will not be upheld if the indictment upon which it is based does not set forth the

essential elements of the offense.” United States v. Gayle, 967 F.2d 483, 485 (11th

Cir. 1992). But “[w]hen the adequacy of an indictment is challenged for the first

time on appeal, this Court must find the indictment sufficient unless it is so

defective that it does not, by any reasonable construction, charge an offense for

which the defendant is convicted.” United States v. Adams, 83 F.3d 1371, 1375

(11th Cir. 1996). As with the other claimed errors in this case, Garcia did not

challenge the indictment in district court.

      Garcia says that the indictment failed to allege the essential elements of a

Klein conspiracy under 18 U.S.C. § 371, which forms part of the conspiracy charge

in Count One. To convict someone of conspiring to defraud the IRS in violation of

§ 371, the government must prove “(1) [the defendant and at least one other

person] agreed to impede the functions of the IRS; (2) [the defendant] knowingly


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and voluntarily participated in that agreement; and (3) [one of the conspirators]

committed an act in furtherance of the agreement.” United States v. Hough, 803

F.3d 1181, 1187 (11th Cir. 2015). Garcia urges that the indictment was insufficient

because it failed to include language drawn from Hammerschmidt v. United States,

265 U.S. 182 (1924), which holds that to be convicted of a Klein conspiracy the

defendant must have conspired to obstruct or impede a government function “by

deceit, craft or trickery, or at least by means that are dishonest.” Id. at 188.

      Her argument is without merit. To be sufficient, an indictment does not have

to track the precise language of a judicial opinion. See United States v. Fern, 155

F.3d 1318, 1325 (11th Cir. 1998). A fair reading of the charges levelled against

Garcia shows that all of the elements of the conspiracy were properly alleged. In

fact, Count One specifically alleged that one purpose of this conspiracy was “to

defraud the United States by impairing, obstructing, and defeating the lawful

functions of the Internal Revenue Service.” Moreover, Count One clearly detailed

the deceitful and dishonest “manner and means” by which the conspirators

attempted to accomplish the alleged purpose of the conspiracy. The heart of her

argument seems to be that the indictment was defective because it detailed the

dishonest means in thirteen paragraphs instead of simply alleging that she agreed

with the conspirators to mislead through deceitful means. Count One of the

indictment was sufficient. We can discern no error, plain or otherwise.


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                                               B.

      Next, Garcia raises various challenges to the district court’s jury

instructions. All of them were unpreserved, and, therefore, we only review them as

well for plain error.

      First, both the government and the defendant agree that the district court’s

charge to the jury constructively amended Count One when the court told the jury

that the conspiracy to defraud included “attempting to impair, obstruct and defeat

the lawful function of the IRS.” See United States v. Keller, 916 F.2d 628, 634

(11th Cir. 1990) (“[A]n amendment occurs when the essential elements of the

offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.”). The inclusion of the

attempt language was error and was plain, but Garcia cannot prevail on plain error

review because she has failed to show that it affected her substantial rights or that

the error affected the fairness, integrity, or public reputation of the judicial

proceeding. Despite the erroneous inclusion of a reference to attempt, a review of

this record makes it exceedingly unlikely that the jury convicted Garcia of an

attempt in Count One.

      In the first place, the line in the jury instructions that Garcia takes issue with

is the only mention of “attempt” found anywhere in the instructions or, for that

matter, in the entire trial. The government did not present or argue its case on an


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attempt theory; in fact, the prosecutor never even mentioned the word attempt in its

closing argument. And the district court never explained the meaning of the word.

This strongly suggests that the error had no impact on the jury. Indeed, the jury had

no reason to home in on an attempt or to give the word any legal significance.

What’s more, and perhaps even more important, the jury also convicted Garcia of

the three substantive charges found in Counts Two, Three, and Four. Because each

of them was included as an object of the conspiracy, Garcia’s convictions on these

charges also substantially reduces any possibility that the jury found her guilty on

an attempt theory. After all, the jury found that Garcia actually filed false and

fraudulent personal income tax returns for 1997, and again for calendar years 2006

and 2007. It is, therefore, remote that the verdict rendered on Count One was

somehow based on an attempt to defraud rather than on the actual commission of

the substantive crimes. This, when taken in concert with the fact that the court

never explained what the word attempt meant, the government never argued an

attempt theory to the jury, and the entire evidential foundation of the government’s

case was devoid of any reference to an attempt allow us to say with great

confidence that the error did not prejudice Garcia under plain error review, nor did

it affect the fairness and integrity of the proceeding. See United States v. Madden,

733 F.3d 1314, 1323 (11th Cir. 2013).




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      Garcia further claims that the district court failed to instruct the jury, among

other things, about the Klein conspiracy alleged in Count One. Again we are not

persuaded. For starters, the district court gave the general § 371 conspiracy

instruction as to Count One. To the extent the district court erred, the error did not

affect Garcia’s substantial rights. To determine whether any error affected the

defendant’s substantial rights, we ask whether “the omitted element was

uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error.” Neder v. United States, 527 U.S. 1, 17

(1999).

      It is abundantly clear that the primary issue contested at trial was whether

the defendant knowingly and willfully participated in the tax conspiracy. We

repeat that the jury ultimately convicted Garcia on three substantive tax charges,

which were included as objects of Count One. Thus Garcia cannot show that any

claimed error affected her substantial rights or that it affected the fairness or

integrity of the proceeding. This claim fails as well.

      Garcia also argues that the district court erred in failing to give a multiple

objects/unanimity instruction for the conspiracy charge. Where the charged

conspiracy has multiple possible objects, the jury instructions should inform the

jury that they must not only be unanimous as to the conspiracy charge, but also as

to the objects of the conspiracy. See United States v. Ross, 131 F.3d 970, 989 (11th


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Cir. 1997) (“The jury was properly instructed that the Government was not

required to prove that [the defendants] committed each of the crimes charged as

objects of the conspiracy, provided that the jury unanimously agreed on which of

the offenses they conspired to commit.”). Here, no such instruction was given.

      But Garcia cannot prevail on this round either because defense counsel

plainly invited the error. “In the Eleventh Circuit, the doctrine of invited error is

implicated when a party induces or invites the district court into making an error.”

United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (quotations

omitted). Thus, for example, “[w]hen a party responds to a court's proposed jury

instructions with the words ‘the instruction is acceptable to us,’ such action

constitutes invited error.” United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir.

2005). “These words serve to waive a party's right to challenge the accepted

instruction on appeal.” Id. Here, the district court specifically proposed using a

special verdict form to ensure that the jury was unanimous as to each object of the

charged conspiracy. Defense counsel objected to the use of a special verdict form.

The court responded, “you understand that if I go along with you, that you can’t be

later heard to complain that the jury didn’t specify the manner in which the offense

was committed.” To this, defense counsel categorically answered, “yes, your

honor.” The district court heeded counsel’s objection, followed her advice, and did

not use the special verdict form. Since Garcia’s counsel undisputedly “induce[d]”


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the error, she cannot be heard to complain about it later on appeal. United States v.

Stone, 139 F.3d 822, 838 (11th Cir. 1998).

      Moreover, even if the invited error doctrine did not foreclose the claim --

and we believe that it does -- Garcia still would not prevail on this issue since the

district court never instructed the jury that the government only had to prove one of

the objects of the conspiracy as alleged. Rather the court’s instructions required the

jury to find the defendant guilty of conspiring to impede and impair the IRS in its

tax assessing and collecting function and of committing substantive tax offenses

against the United States.

      Garcia’s final two challenges to the court’s instruction fail as well because

neither of the instructions she takes issue with was erroneous. First, appellant

claims that the district court failed to properly instruct the jury on the meaning of

the word “material” when it charged the jury about the three substantive false filing

counts. “The elements of false filing under § 7206(1) are: (1) the making and

subscribing of a tax return containing a written declaration that it was made under

the penalties of perjury; (2) by one who did not believe the return to be true and

correct as to every material matter; and (3) who acted in a willful, as opposed to a

negligent manner.” United States v. Kaiser, 893 F.2d 1300, 1305 (11th Cir. 1990).

In Neder, the Supreme Court held that “a false statement is material if it has ‘a




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natural tendency to influence, or [is] capable of influencing, the decision of the

decisionmaking body to which it was addressed.’” Neder, 527 U.S. at 16.

      Here, the district court gave instructions on each of the elements of a §

7206(1) false filing offense, and then offered the jury the following definition of

“material”: “A false matter is ‘material’ if the matter was capable of influencing

the Internal Revenue Service.” The court also properly explained that that “[a]

declaration is ‘material’ if it concerns a matter of significance or importance, not a

minor or insignificant or trivial detail.” When taken in light of the entire jury

charge, these definitions were clearly adequate. See United States v. Gibson, 708

F.3d 1256, 1275 (11th Cir. 2013) (“When the jury instructions, taken together,

accurately express the law applicable to the case without confusing or prejudicing

the jury, there is no reason for reversal even though isolated clauses may, in fact,

be confusing, technically imperfect, or otherwise subject to criticism.”). Garcia has

not established error, let alone one that was plain, affected her substantial rights,

and undermined the fairness and integrity of the judicial proceeding.

      Finally, Garcia challenges the district court’s aiding and abetting instruction.

“To prevail under a theory of aiding and abetting, the government must prove: (1)

the substantive offense was committed by someone; (2) the defendant committed

an act which contributed to and furthered the offense; and (3) the defendant

intended to aid in its commission.” United States v. Seabrooks, 839 F.3d 1326,


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1333 (11th Cir. 2016). Garcia says that the district court erred in using the

Eleventh Circuit’s pattern aiding and abetting instruction because it explained that

the jury must find that Garcia “intentionally associated” herself with the crime,

rather than instructing that she must act, as Garcia contends is required by

Rosemond v. United States, 572 U.S. 65 (2014), “with the intent of facilitating the

offense's commission.” Id. at 71. Again, we are unpersuaded.

         The district court’s instruction was nearly identical to instructions on aiding

and abetting that we have approved in the past. See United States v. Broadwell,

870 F.2d 594, 607 n. 32 (11th Cir. 1989) (“[I]t is necessary that the defendant

willfully associate himself in some way with the crime and willfully participate in

it.”). Moreover, the Supreme Court did not change the law on aiding and abetting

in Rosemond -- that decision only clarified what the law had always been. See

Rosemond, 572 U.S. at 76. That the district court did not adopt verbatim certain

passages from Rosemond does not undercut the correctness of its aiding and

abetting instruction. The district court’s instructions were altogether consonant

with the law on aiding and abetting as we had explicated it before Rosemond, and

after.


                                                 C.


         Finally, Garcia urges reversal of her convictions on account of cumulative

error. “The cumulative error doctrine provides that an aggregation of non-
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reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotations

omitted). “We address claims of cumulative error by first considering the validity

of each claim individually, and then examining any errors that we find in the

aggregate and in light of the trial as a whole to determine whether the appellant

was afforded a fundamentally fair trial.” Morris v. Sec’y, Dep't of Corr., 677 F.3d

1117, 1132 (11th Cir. 2012). “The total effect of the errors on the trial will depend,

among other things, on the nature and number of the errors committed; their

interrelationship, if any, and combined effect; how the district court dealt with the

errors as they arose (including the efficacy -- or lack of efficacy -- of any remedial

efforts); [ ] the strength of the government's case, and the length of trial.” Baker,

432 F.3d at 1223 (quotation omitted).

      Even when considered in concert, the errors alleged here -- including the

serious matter of introducing inculpatory evidence in the absence of the defendant

and her counsel along with the constructive amendment of the indictment, and the

failure to instruct the jury on an element of the Klein conspiracy -- do not warrant

reversal. To begin with, as we have made abundantly clear, none of the errors,

standing alone, affected Garcia’s substantial rights. The government presented a

very strong case; and the errors were not closely related to the central issue raised


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during the trial -- whether Garcia acted with the necessary mens rea, that is

knowingly, willfully, and intentionally. Moreover, the Fifth and Sixth Amendment

errors had precious little to do with the instruction on attempt or the failure to

include more particularly one of the Klein conspiracy elements in the charge. None

of the errors standing alone or together deprived Garcia of a fair trial.

                                               IV.

      We end where we began, by emphasizing that the Fifth and Sixth

Amendment errors in this case are troubling. This is particularly true in the face of

trial counsel’s deliberate failure to object. The failure to do so meant that the

district court in this adversarial proceeding had less reason to act. As a result, the

trial proceeded without any remedial action to address their absence. There can be

little doubt that, if Garcia could show prejudice, this case would qualify as one

where the Court should, under the fourth prong of plain error review, find that the

errors “seriously affect[ed] the fairness, integrity or public reputation of judicial

proceedings” and exercise its discretion to afford relief. United States v. Olano,

507 U.S. 725, 732 (1993). The right to counsel, the right to confront one’s

accusers, and the right to be present at trial are fundamental to our system of

justice. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963); Pointer v. Texas,

380 U.S. 400, 404 (1965); United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir.

2000). But at the end of the day when measured against the standard of plain error


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we are fully satisfied that the defendant has failed to carry her heavy burden.

Further, as for the sufficiency of the indictment, cumulative error, and the district

court’s jury instructions, we are again fully satisfied that the claimed errors did not

prejudice Garcia. Accordingly, we affirm.

        AFFIRMED.




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WILSON, Circuit Judge, concurring:

      This troubling case presents a familiar factual scenario—a district court

judge permitted a criminal trial to resume, and inculpatory evidence to be taken,

without defense counsel present. We recently confronted a nearly identical appeal

from the same district judge as an en banc court in United States v. Roy. 855 F.3d

1133 (11th Cir. 2017) (en banc). In Roy, we determined that such constitutional

violations can—and usually will—be harmless. The facts of this case, however,

are even more egregious than those in Roy because here, the defendant was also

absent. Despite the deserted defense table, the district court judge prompted the

government to continue its direct examination of an important witness.

      I maintain that the deprivation of counsel in Roy—like the constitutional

violation in the instant case—constituted a structural error, and “[t]he Supreme

Court has given explicit instructions for remedying structural error: remand for

new, constitutionally-compliant proceedings.” Id. at 1246 (Wilson, J. dissenting)

(citing United States v. Cronic, 466 U.S. 648, 659 & n.25, 104 S. Ct. 2039, 2047 &

n.25 (1984)). The Roy majority, however, decided to review the constitutional

violations for harmless error beyond a reasonable doubt.

      Recognizing a structural error and remanding Roy for constitutionally-

compliant proceedings would have prevented this district court judge from

continuing his indisputably unconstitutional practice of conducting criminal trials


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in the absence of defendants or their counsel. Such a decision would have

incentivized the judge to forego his unconstitutional courtroom policies;

conversely, however, our decision to employ the harmless error analysis

effectively sanctioned these policies, as that analysis provides no mechanism for

future defendants unlucky enough to sit in this particular judge’s courtroom to

challenge the constitutional violations that will inevitably continue to occur.

Ultimately, our decision in Roy confirms what the Supreme Court has consistently

held: structural errors “defy analysis by harmless-error standards” because they

“affect[] the framework within which the trial proceeds.” Arizona v. Fulminante,

499 U.S. 279, 280, 309–10, 111 S. Ct. 1246, 1265 (1991).

      Nonetheless, we are bound to apply the framework established in Roy—

harmless error beyond a reasonable doubt. Roy, 855 F.3d 1133, 1141 (majority

opinion). Despite Roy’s mandate, however, the majority chose to review the

constitutional violations at issue in this case for plain error. Because both analyses

result in an affirmance, I concur.

                                          I.

      A grand jury charged Lourdes Margarita Garcia with (1) conspiring with her

husband, Angel, and others (a) to defraud the United States by impeding the IRS

and (b) to commit an offense against the United States by making false statements

on her tax returns, in violation of 18 U.S.C. § 371 (Count 1); and (2) making false


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statements on her 1997, 2006, and 2007 tax returns, in violation of 26 U.S.C.

§ 7206(1) (Counts 2–4). Garcia and her husband operated a medical clinic, Global

Medical Group (Global), in Miami, Florida. The Garcias set up Global as a pass-

through corporation, taking their income directly from Global’s corporate bank

accounts. The indictment alleged that the income Garcia received from Global was

significantly greater than the amount she and her husband represented to their

accountant and the IRS.

      Garcia stood trial in the Southern District of Florida. The trial lasted ten

days and involved dozens of witnesses. The government called IRS Agent Angela

Arevalo as its twenty-third and final witness and, in the presence of the defendant

and her attorneys, Arevalo testified at length about Garcia’s tax returns for 1997,

2006, and 2007; Global’s and the Garcias’ income during those years; and how she

reviewed the Garcias’ accounts to determine what transactions were attributed to

personal use. During this portion of Arevalo’s testimony, the government

introduced a schedule prepared by Arevalo summarizing the “disposition of

proceeds for tax years 2006 and 2007” in order to “demonstrate how the income,

coming from Global Medical center[,] was disposed by the defendant” in taxable

years 2006 and 2007. Doc. 77 at 75–76. Garcia’s counsel did not object to the

admission of this evidence.




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       As the government prepared to review a few of the transactions, the court

ordered a lunch recess. At the end of this break, courthouse personnel delayed

Garcia and both of her attorneys at the security checkpoint, apparently due to a

false alarm indicating that Garcia had a cell phone in her possession. One of

Garcia’s attorneys, Sabrina Puglisi, proceeded to the courtroom; the other, Ashley

Litwin, remained behind with Garcia. By the time Puglisi reached the courtroom,

however, the government had already resumed its direct examination of Agent

Arevalo. Garcia and Litwin arrived approximately two to seven minutes later. The

parties agree that examination occurred without counsel for approximately three

minutes and without the defendant for approximately five to ten minutes. 1

       While counsel was absent, three checks from 2006 and three checks and four

debit charges from 2007—all of which were contained in the previously-admitted

schedule—were published and shown to the jury. A cross, redirect, and re-cross

followed, during which Garcia’s counsel questioned Arevalo for about fifty pages

of the trial transcript before the government rested its case.




1
  The record is not clear as to when each missing individual—Puglisi, Litwin, and Garcia—
returned to the courtroom. The trial transcript shows that the district court announced a one-hour
lunch break at 12:30 P.M., and trial resumed at 1:30 P.M. The government’s post-lunch direct
examination of Arevalo spans seven transcript pages. Puglisi was back by at least the seventh
page, as the government passed the witness to her for cross-examination without comment at that
time. Because the transcript is not time-stamped, both the government and Garcia assume that
counsel was absent during the entire post-lunch direct examination. For the purpose of this
appeal, I do as well.

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      The transcript does not reveal why the district court judge chose to resume

the examination of Arevalo in the absence of both the defendant and her counsel.

The judge did not directly comment on the defense’s absence; however, when the

prosecutor—likely realizing the inappropriateness of the situation—gestured to the

empty defense table, the judge simply said “please continue.”

      Curiously, Garcia never objected to the taking of inculpatory evidence in her

absence, despite the government’s prompting. During the next trial day, the

prosecutor requested a sidebar where he acknowledged that he conducted a portion

of Agent Arevalo’s direct examination without the defendant or her counsel

present, and asked if the court would be willing to read back the missed testimony.

The judge responded:

            [Garcia] didn’t have to be here if she didn’t want to be
            here. I mean, everybody else seemed to be able to make
            it on time . . . . If she wants to read it, she can order the
            transcript and read it. There wasn’t anything in there that
            I can recall, any particular issue. I mean, if you want to
            order the transcript, you’re welcome to.

Doc. 78 at 3–4. The prosecutor pressed on, noting that he wished to ensure

that Garcia had a chance to consider any incriminating evidence presented

during her absence before the government rested its case. The district court

judge continued:

            I mean, I took it as she voluntarily absented herself from
            the proceedings. One way to look at it. Just out of an
            abundance of caution, if she thinks there is any kind of
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               prejudice, she can order the transcript and review it . . . .
               I mean, it’s self-inflicted. She manufactured the problem
               herself; I don’t know how she can fault anybody else for
               it.

Id. at 4–5. In a final attempt, the prosecutor asked defense counsel if she was

“going to state an objection at this point,” to which she responded: “Not at this

time, no.” Id. at 5. The sidebar concluded, and the trial continued. 2

       After the jury convicted her of all counts, Garcia filed a Motion for New

Trial, raising Fifth Amendment, Sixth Amendment, and Federal Rule of

Criminal Procedure 43 claims. The district court denied her motion, and

Garcia appealed, arguing that she is entitled to a new trial because (1) her

constitutional rights were violated by the district court judge’s decision to

allow the government to introduce inculpatory evidence while she and her

counsel were absent, and (2) the indictment was insufficient and the jury

instructions were improper.

       The majority affirmed the district court’s decision on all counts,

reviewing the constitutional violations for plain error. I agree that we must

affirm. I maintain, however, that our Roy decision mandates that we review

this constitutional violation for harmless error beyond a reasonable doubt, and

that is why I write separately. Because I agree with the majority’s reasoning


2
  I commend the prosecutor in this case for his candor in persistently drawing the district court’s
attention to a serious constitutional violation.

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regarding Garcia’s indictment and jury instruction claims, I do not address

them.

                                        II.

        Garcia alleges that several constitutional violations occurred when the

district court started trial without her or her counsel, and that each warrants

reversal of her conviction. First, she argues that the absence of her counsel

violated the Sixth Amendment. Second, she contends that her absence violated the

Fifth and Sixth Amendments. Finally, she argues that her absence combined with

her counsel’s absence amplifies the severity of these violations. Although I agree

with Garcia that serious constitutional violations occurred, her arguments for a new

trial are ultimately unavailing under the harmless error analysis required by Roy.

A. Absence of Garcia’s Counsel

        Garcia argues that the absence of her counsel during the introduction of

inculpatory evidence by a key prosecution witness violated her Sixth Amendment

right to counsel and, accordingly, requires reversal of her convictions. First, she

claims that the violation constituted structural error, necessitating automatic

reversal. Second, she argues that it amounted to hybrid error under Brecht v.

Abrahamson. 507 U.S. 619, 638 n.9, 113 S. Ct. 1710, 1722 n.9 (1993). Finally,

she asserts that, in any event, the error was harmful. The majority dismisses each

of these arguments, instead reviewing the constitutional violations for plain error.


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I address each theory—structural error, hybrid error, plain error, and harmless

error—respectively.

   i.      There Was No Structural Error

        There is no doubt that a startling, intentional depravation of Garcia’s Sixth

Amendment right to counsel occurred here. Although it is well-established that “a

trial is unfair,” and prejudice is presumed, “if the accused is denied counsel at a

critical stage of his trial,” United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct.

2039, 2047 (1984), there is no getting around Roy. In that case, the same district

judge permitted the government to go forward with direct examination in the

absence of the defendant’s counsel. The prosecution elicited inculpatory testimony

for seven minutes before Roy’s counsel arrived. Roy, 855 F.3d at 1135. After

considerable arithmetic and an exhaustive analysis of the meaning of “stage,” the

en banc court determined that the prosecution’s 18 questions on direct examination

did not amount to a “critical stage” of Roy’s trial under Cronic. Id. at 1148. The

majority specifically found that 18 questions (out of more than 2,500) and 7

minutes (out of 1,884) did not “constitute a separate step in the process of the trial,

or a discrete phase of it,” such that it could be considered a “stage” of a trial at all.

Id. at 1140, 1147–48.

        If we are faithful to the majority opinion in Roy, then it is clear that the

absence of Garcia’s counsel here did not amount to a structural error under Cronic.


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Garcia’s counsel was absent for a shorter amount of time (3 minutes) in a longer

overall trial (2,987 minutes) than Roy’s. While “[l]ength alone does not always

define a stage of a trial” for Cronic purposes, id. at 1146, it is clear that this portion

of Garcia’s trial falls outside of the especially demanding definition of “critical

stage” put forth in Roy, which would require counsel’s absence “throughout an

entire discrete, critical stage of a criminal proceeding.”3 See id. at 1164.

        Garcia does not fare any better under Roy’s “substantial portion

determination.” Id. at 1165. Under this case-by-case analysis, a presumption of

prejudice may attach depending upon “the length of time counsel was out, the

proportion of the trial missed, [ ] the significance of what [counsel] missed,” and

“whether the reviewing court can determine when counsel was out and what he

missed.” Id. As noted above, the length of time that Garcia’s attorneys were

absent (3 minutes) and the proportion of the trial that they missed (.1%) are even

less significant than in Roy. Furthermore, we know almost precisely which portion

of the trial Garcia’s counsel missed; her counsel cross-examined the government’s

3
  Whether this is a fair reading of “critical stage” or a faithful application of Cronic has been
vigorously debated by the full court. See, e.g., Roy, 855 F.3d at 1238–41 (Wilson, J., dissenting)
(“I can think of no more critical a stage in criminal proceedings than the admission of
inculpatory evidence against a defendant.”); id. at 1213 (Rosenbaum, J., concurring in part and
concurring in the result) (noting that “[t]he Supreme Court has never held that the absence of
counsel for part, but not all, of a critical stage of trial does not constitute structural error” and that
Cronic speaks of the absence of counsel not “throughout” but “at a critical stage”). But this test
is the one that has been adopted by this Court sitting en banc, and we must respect the prior
precedent rule. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e
categorically reject any exception to the prior panel precedent rule based upon a perceived defect
in the prior panel’s reasoning or analysis as it relates to the law in existence at that time.”).

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witness extensively; and Garcia’s counsel were encouraged to order the transcript

and determine whether anything else was objection-worthy, although they declined

to do so. Under Roy’s province, there was no structural error, be it Cronic or

otherwise.

   ii.      Brecht Hybrid Error Does Not Apply

         Next, Garcia asks us to apply the “hybrid error” exception contemplated in

footnote nine of Brecht v. Abrahamson, which would require reversal without a

showing of actual prejudice. 507 U.S. 619, 638 n.9, 113 S. Ct. 1710, 1722 n.9

(1993). In Brecht, which established the standard for habeas petitioners

challenging constitutional trial errors, the Supreme Court noted that an exception

may be warranted “in an unusual case” where “a deliberate and especially

egregious error of the trial type, or one that is combined with a pattern of

prosecutorial misconduct, might so infect the integrity of the proceeding as to

warrant the grant of habeas relief, even if it did not substantially influence the

jury’s verdict.” Id.

         The Supreme Court has not applied—or even remarked upon—this

exception since, and neither has this Court. Of the circuits that have discussed the

Brecht footnote nine exception, all have recognized that it is reserved for especially

shocking trial misconduct, those “unclassifiable and pervasive errors” the harmful

effects of which cannot be evaluated from the record. United States v. Bowen, 799


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F.3d 336, 353 (5th Cir. 2015); see also Hassine v. Zimmerman, 160 F.3d 941, 959–

61 (3d Cir. 1998). Instructively, in Brecht itself, the Supreme Court found that it

was, “of course, [ ] not presented with such a situation” where the government

committed numerous Doyle4 violations during cross-examination and closing

arguments while prosecuting a defendant for first-degree murder. Brecht, 507 U.S.

at 638 n.9, 113 S. Ct. at 1722 n.9. Ultimately, no authority exists justifying the

extension of the Brecht exception to the constitutional violation at issue in this

appeal.

    iii.      Plain Error Analysis is Improper

           The majority reviews the constitutional violation here for plain error, rather

than for harmless error beyond a reasonable doubt. While I maintain that neither

analysis should be necessary, as a structural error occurred and “[t]he Supreme

Court has given explicit instructions for remedying structural error: remand for

new, constitutionally-compliant proceedings,” Roy, 855 F.3d at 1246 (Wilson, J.,

dissenting) (citing Cronic, 466 U.S. at 659 & n.25, 104 S. Ct. at 2047 & n.25), I

recognize that we are bound by the majority’s decision in Roy. Accordingly, the

proper standard of review is harmless error beyond a reasonable doubt.




4
  Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241 (1976) (holding that “use of the
defendant’s post-arrest silence” “to impeach a defendant’s exculpatory story, told for the first
time at trial” violates due process).

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      In deciding to apply the plain error analysis, the majority focuses on the

following language in Roy:

             Absent any knowledge of why defense counsel was
             absent, whether the AUSA or judge realized he was not
             present, about what counsel realized or didn’t when he
             walked in late, and about whether he took some
             ameliorative action not reflected in the transcript, we will
             not apply the plain error rule or remand for any findings
             necessary to decide if it is applicable. Instead, in order to
             simplify our analysis, we will indulge the assumption that
             the plain error rule does not apply even though there was
             no contemporaneous objection.

Roy, 855 F.3d at 1141 (majority opinion). The majority interprets this passage to

mean that, because “[w]e did not know whether defense counsel had preserved the

error, [ ] we gave him the benefit of the doubt on appeal,” Maj. Op. at 22, and thus

“indulge[d] the assumption that the plain error rule d[id] not apply,” Roy, 855 F.3d

at 1141. In this case, the majority reasons, it is apparent that counsel failed to

object, and therefore it is unnecessary to “indulge th[is] assumption”; accordingly,

plain error review applies. This is a misinterpretation of Roy, as it considers only

whether defense counsel took “ameliorative action,” and ignores several other

factors relied upon by the Roy court.

      Although the majority is correct in stating that counsel in this case did not

object to the constitutional violations, we are still bound to review for harmless

error beyond a reasonable doubt because we do have knowledge of (1) why

defense counsel was late (she was held up in security), (2) whether the AUSA
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realized she was not present (he gestured to the defense table, acknowledging that

it was empty), and (3) whether the judge realized counsel was not present (he

responded to the AUSA’s gesture with “please continue”). In Roy, we emphasized

the importance of the third factor—whether the judge noticed defense counsel was

absent. In dismissing the appellant’s contention that the district court “allowed”

the introduction of inculpatory evidence in the absence of defense counsel, the Roy

court stated, “[t]here is nothing in the record to indicate . . . that the court did not

notice counsel was absent.” Roy, 855 F.3d at 1141 n.6. In the instant case, it is

clear the judge noticed that the defendant and her counsel were absent based on his

instruction to the AUSA to “please continue” after the AUSA gestured to the

unoccupied defense table. Even without that indication, however, it is illogical to

suggest that a judge would not notice a vacant defense table. Regardless of these

facts, under Roy, “[w]e can indulge the assumption” that the harmless error

analysis, as opposed to the plain error analysis, applies “because even with it the

result is the same.” Id.

       Moreover, I fear that the majority’s decision to review such blatant

constitutional violations for plain error sets a dangerous precedent. The harmless

error analysis dictated by Roy effectively sanctions this district court judge’s

unconstitutional practice of overseeing criminal trials while defendants and their

counsel are absent, as the standard is too burdensome to overcome. Reviewing the


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constitutional errors that will inevitably continue to occur in this judge’s courtroom

for plain error gives future defendants even less opportunity to remedy these

constitutional violations.

    iv.      There Was No Harmful Error

          Having concluded that structural error, hybrid error, and plain error review

do not apply, we are left with Chapman harmless error review. See Roy, 855 F.3d

at 1178. Under this standard, we must determine whether the government has

“prove[n] beyond a reasonable doubt that the error complained of”—the absence of

counsel during three minutes of testimony—“did not contribute to the verdict

obtained,” but was instead “harmless beyond a reasonable doubt.” Chapman v.

California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). I address the relevant

counts in turn and explain why the government has met its burden with respect to

each.5

                               1. The 1997 Substantive Count

          Count 2 charged Garcia with making a false statement in her year 1997 tax

return, in violation of 26 U.S.C. § 7206(1). The evidence discussed during

counsel’s absence was both factually and legally unrelated to Garcia’s 1997 tax


5
  As noted above, the parties agree that neither defense attorney was present for approximately
three minutes of direct examination. However, because the transcript does not contain
timestamps, I proceed, out of an abundance of caution, with the assumption that counsel was
absent from the end of the lunch break to the beginning of cross examination—the first time that
defense counsel’s name appears on the transcript. This spans seven pages. See Doc. 77 at 79–
85.
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returns, business income, or spending. Therefore, the error was harmless beyond a

reasonable doubt as to Count 2.

                      2. The 2006 and 2007 Substantive Counts

      Counts 3 and 4 charged Garcia with making a false statement on her 2006

and 2007 tax returns, in violation of 26 U.S.C. § 7206(1). Beyond a reasonable

doubt, Garcia’s convictions for Counts 3 and 4 were not affected by the three

minutes of testimony missed by her counsel. Over six days and through the

testimony of twenty-three witnesses, the government introduced overwhelming

evidence that Garcia made false statements on her 2006 and 2007 joint tax returns

by misrepresenting her gross income. It did so through technical tax and

accounting presentations and through a wide variety of witnesses who testified to

the Garcias’ extraordinary spending in 2006 and 2007. Furthermore, everything

discussed during the three minutes counsel was absent had already been admitted

into evidence without objection. Moreover, Garcia’s counsel proceeded to conduct

an extensive cross-examination and then declined to order the record, to make any

objections, or to conduct further inquiry into the missed testimony. We are

satisfied beyond a reasonable doubt that Garcia’s three-minute deprivation of

counsel was harmless as to Counts 3 and 4.

      IRS Agents Reid, McNeal, and Arevalo testified at length concerning the

Garcias’ business structure, bank accounts, tax returns, and spending. The


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government also called the Garcias’ certified public accountant (CPA) as a

witness; he testified that the Garcias hid five bank accounts from him, instructed

him to designate a large portion of Global’s income as “shareholder loans,” and

had him divide up small percentages of the rest of the income between the family.

IRS Agent Edwina McNeal prepared a schedule of personal expenditures and

identified over $180,000 in checks that were signed by Garcia and withdrawn from

Global accounts, but not reported to her accountant in 2006 and 2007.

Additionally, Arevalo testified (with counsel present) that Global had no

shareholder loans, that it earned considerably more than what Garcia reported, and

that it passed through over $400,000 in taxable income to the Garcias in both 2006

and 2007.

      Patients, accountants, salespersons, IRS agents, and a real estate attorney

testified about the Garcias’ significant personal spending in 2006 and 2007,

including the purchase of multiple luxury cars and a $2 million home. Agent

McNeal identified $440,000 in checks that Garcia endorsed to Angel in 2006,

which Garcia admitted were for the home’s down payment. The CPA who assisted

with the purchase of the home testified that the Garcias gave him copies of

fictitious joint tax returns for 2004 through 2006 reflecting substantial gross

income (almost $1 million per year) in order to obtain a self-employment

verification letter for the purchase of the home. Moreover, Agents Reid and


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McNeal also reviewed $100,000 in checks that Garcia wrote for the installation of

a custom kitchen in the newly purchased home. This is just a snapshot of the

evidence the government introduced demonstrating that the Garcias’ income was

substantially higher than the reported amounts. Notably, all of this evidence was

presented in the presence of defense counsel.

      The government also presented overwhelming evidence connecting Garcia

to the false tax returns and exorbitant spending at issue. IRS Agents Reid,

McNeal, and Arevalo testified repeatedly as to the unique characteristics of

Garcia’s signature, which they identified on multiple documents and checks. Their

testimony was supported by other witnesses, such as salesman Charles Fortin, who

identified Garcia as the person who signed “Lourdes Garcia” on a $50,000 check

drawn on her children’s account in 2007.

      Arevalo served as the government’s twenty-third witness, summarizing

much of the previously-admitted evidence. Prior to the lunch break on the sixth

day of trial, Arevalo explained in great detail how she examined checks and debit

receipts in order to compute how much of Global’s funds the Garcias used on

personal expenses benefiting their family, and how she compiled this information

into a schedule, which was admitted into evidence without objection. Arevalo’s

testimony amounted to 130 pages of trial transcript with counsel present. The




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three minutes of her testimony missed by Garcia’s counsel was a fraction of the

hours of direct examination, cross examination, redirect, and recross.

      In light of the overwhelming evidence against Garcia, it is clear beyond a

reasonable doubt that this three-minute portion of Arevalo’s testimony did not

contribute in any significant way to the verdicts as to Counts 3 and 4. Our

conclusion is bolstered by the fact that all of the evidence discussed during those

three minutes had already been admitted into evidence without objection.

Furthermore, Garcia’s counsel cross examined Arevalo for fifty pages of trial

transcript regarding the accounts, checks, and transactions listed in Arevalo’s

schedule. And after the cross, Arevalo repeated on redirect the details of numerous

specific checks, how she identified Garcia’s signature, how she computed Global’s

income, and how she attributed specific items to calculate the Garcias’ actual

income. The error was harmless beyond a reasonable doubt as to Counts 3 and 4.

                               3. The Conspiracy Count

      Finally, the missed testimony was harmless as to the Count 1 conspiracy

conviction. Count 1 charged Garcia with conspiring with her husband and others

to defraud the United States by making a false statement on her federal income

taxes, in violation of 18 U.S.C. § 371. None of the evidence presented during

counsel’s absence related to the conspiracy elements of Count 1, and the

government put forth overwhelming independent evidence of an overt act toward


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the falsification of tax returns. Indeed, the jury convicted Garcia of personally

committing such an act in Counts 2 through 4, which, as discussed above, were not

affected by the constitutional error. The Sixth Amendment error did not contribute

to the Count 1 conspiracy verdict, and it was therefore harmless beyond a

reasonable doubt.

   v.      Summary

        Applying the framework established in Roy, the three-minute absence of

Garcia’s counsel, although a constitutional violation, was harmless beyond a

reasonable doubt as to all counts. I now turn to the absence of Garcia herself.

B. Absence of Garcia

        Next, Garcia argues that her five-to-ten minute absence from trial constitutes

a separate ground for reversal. I agree that proceeding with Arevalo’s direct

examination without Garcia present violated her constitutional rights; however,

applying the same harmlessness analysis as above, we must affirm.

        A defendant’s right to be present at trial is grounded in the Sixth

Amendment’s Confrontation Clause, the Fifth Amendment’s Due Process Clause,

and Federal Rule of Criminal Procedure 43. See United States v. Novaton, 271

F.3d 968, 997 (11th Cir. 2001). The Confrontation Clause provides the narrowest

right, primarily protecting the right of cross-examination, id., while the Due

Process Clause grants a somewhat broader guarantee of presence at any critical


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stage if that presence “would contribute to the fairness of the procedure.”

Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). Rule 43, on

its face, provides the broadest right for a defendant to be present. See FED. R.

CRIM. P. 43(a) (“[T]he defendant must be present at . . . every trial stage . . . .”); see

also Novaton, 271 F.3d at 998.

      We generally apply the harmless error test to determine whether the absence

of a defendant from a portion of a trial warrants reversal. Novaton, 271 F.3d at

998–99 (“[C]ourts have repeatedly held that the continuation of trial in absence of

a defendant may be harmless.”); see also Arizona v. Fulminante, 499 U.S. 279,

306–07, 111 S. Ct. 1246, 1263 (1991); Roy, 855 F.3d at 1141–43. While counsel’s

simultaneous presence or absence is one relevant factor to be considered in

determining whether a defendant’s absence was harmless, it is not dispositive. See

Novaton, 271 F.3d at 1000.

      Here, as discussed in detail above, any deprivation of Garcia’s constitutional

right to be present during Arevalo’s testimony was harmless. Garcia missed five to

ten minutes—about seven pages of trial transcript—of a direct examination of the

government’s twenty-third witness that lasted for multiple hours and 130 pages of

the trial transcript. The direct examination clearly had no impact on Counts 1 or 2,

which stood independently of Arevalo’s testimony. As to Counts 3 and 4, the

government had already presented overwhelming evidence that Garcia knowingly


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made false statements on her 2006 and 2007 tax returns, and all of the evidence

discussed by Arevalo had been admitted without objection while she and her

counsel were present. Garcia was absent for five to ten minutes of a 2,987 minute

trial. Although we have previously found harmful error when a defendant was

absent for three full days of trial, see Novaton, 271 F.3d at 996–1000, when a

defendant “has been absent for only a brief or minor portion,” we have generally

found her absence to be harmless. See United States v. Durham, 287 F.3d 1297,

1309 (11th Cir. 2002) (collecting cases). Garcia’s absence was brief, minor, and, I

conclude, harmless.

C. Simultaneous Absence of Garcia and Her Counsel

      Garcia’s third claim is that her absence from trial, combined with the

absence of her defense attorney, constitutes reversible error. But we have already

found beyond a reasonable doubt that the three minutes of testimony missed by

both Garcia and her counsel did not contribute to the verdict. Thus, Garcia’s

arguments only gain traction if we apply a test other than harmless error. Under

Roy and Fulminante, however, we are required to apply the harmless error test to

the constitutional violations alleged here. That test, as we have already shown,

yields no relief for Garcia.

      For the foregoing reasons, I think the majority erred in reviewing the

constitutional violations for plain error. Although it is my belief that similar


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constitutional violations will continue to occur in this district court judge’s

courtroom until this Court recognizes the violations as structural errors, and

remands for new, constitutionally-compliant proceedings, I recognize that we are

bound by Roy. Under Roy, harmless error beyond a reasonable doubt is the

appropriate standard. Accordingly, Garcia is not entitled to relief.




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